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AUBURN UNIVERSITY 
LIBRARIES 







nm a^oiiAuni 



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in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/details/forumorfortyyear02inbrow 



C|e innm. 



THE 



EORUM 



FORTY YEARS FULL PRACTICE 



ilaiiflplia far, 

BY 

DAVID PAUL BROWN. 



■ MiGNUa DICENDI I.ABOR — MAQNA KE3, MAQ^^TA DIGiTITAS, 3DMMA AUTEM GRATIA." — CICERO 



VOL. 11. 



PHILADELPHIA: 
ROBERT H. SMALL, LAW BOOKSELLER, 

NO. 21 SOUTH SIXTH STREET. 

1856. 






Entered according to Act of Congress, in the year of our Lord 1856, 

BY DATID PAUL BROWN, 

in the District Court, for the Eastern District of Pennsylvania. 



Eobb, Pile & M'ElToy, Prs. 
Lodge Street. 



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uij^tnlin^ tfl ^Ie |iii}um. 



Adams, John B. - 
Adams, Fred. M. - 
Agnew, Daniel 
Alexander, Wm. - 
Alleman, H. Clay - 
Allibone, S. Austin 
Allison, R. P. 
Alricks, Hamilton 
Alsop, Robert 
Arundel, R. J. 
x\slimead, Greo. L. - 

Ashmead, J. W. 

Ashurst, John 

Ashurst, Richard - 

Atlee, W. a. 

Austin, Samuel H. 

Badger, William - 
Baker, D. J. 
Barry, Jos. B. 
Bartesdale, W. H. 
Barton, John 
Bayard, James 



Philadelphia. 

Beaver, Pa. 
Philadelphia. 
York, Pa. 
Philadelphia. 
Lebanon, Tenn. 
Harrisbnrg, Pa. 
Philadelphia. 



New York. 
Philadelphia. 

a 

Lancaster, Pa. 
Philadelphia. 

Philadelphia. 
Lancaster, Pa. 
Philadelphia. 
Lebanon, Tenn. 
Pittsburg, Pa. 
Philadelphia. 



u 



SUBSCRIBERS TO THE FORUM. 



Bell, Thos. S. 
Belsterling, J. F. - 
Bennett, Dan. K. - 
Bennett; J. B. 

Benton, Stephen - 

Benton, W. B. 

Biddle, Craig 
' « Biddle, Geo. W. - 
I Binney, Horace 

Binney, Horace, Jr. 

Binns, John 

Blair, Saml. S. 

Blakeley, Archbold, 

Edmond Blankman, 

Bliss, J. G. - 

Boone, W. F. 

Bowen, R. H. 

Bowman, J. F. 

Boyd, Jas. 

Boyer, B. M. 

Breitenback, John B. 

Bredin, Edmund M. 

Brewster, B. H. 
m Brewster, F. Carroll 

Brown, J. T. 
Brown, L. B. 
Brown, W. W. 
Buck, Jerome 
Budd, Walter J. - 
Buchanan, Jas. M. 
Bullett & Fairthorne, 
Burke, A. - 
Burton, A. M. 
Byi-nes, J. F. 
Burton, W. D. 

Cake, Isaac N. 
Calhoun, J. K. 



Westchester, Pa. 
Philadelphia. 
Pottsville, Pa. 
Philadelphia. 

(C 

Lebanon, Tenn. 
Philadelphia. 



Hollidaysburg, Pa. 
Butler, Pa. 
New York. 
Beaver, Pa. 
Philadelphia. 
New York. 
u 

Norristown, Pa. 



Butler, Pa. 
Philadelphia. 

a 

New York. 
Dunkirk, N. Y. 
Lancaster, Pa. 
Philadelphia. 

Baltimore, Md. 
Philadelphia. 
Pittsburg, Pa. 

Philadelphia. 

u 

Lebanon, Tenn. 

Northumberland, Pa. 
Kittanuing, Pa. 



SUBSCRIBERS TO THE FORUM. 



Ill 



Caldwell, Chas. W. 
Campbell, Jolin H. 
Campbell, St. G-eorge Tucker 
Cannon, J. N. . 
Cardoza, A. - 
Carter, Paul B. 
Carutliers, A. 
Cliadwick & "Ways, 
Chain, B. E. 
Chalfant, E. D. - 
Chamberlin & Cutbberton, 
Chapin, J. C 
Clarke, J. A. 
Clay, Geo. H. 
Clayton, Jobn 
Clayton, Thos. J.- 
Clement, John K. - 
Coyle, A. C. 
Collaban, J. B. 
Collins, Jobn M.- 
Conrad, Osborn 
Conrow, Wm. G. - 
Conrow, G. Norman 
Cook, Archibald 
Cook, W. A. 
Condray, N. A. 
Coxe, Brinton 
Craig, T>. 
Cramond, H. 
Crist, J. Alfred 
Gumming, B. W. - 
Cummins, Alexander G. 
Cunningham, Thomas 
Cuyler, Theodore 



Philadelphia. 



Franklin, Tenn. 
New York. 
Philadelphia. 
Lebanon, Tenn. 
Westfield, N. Y. 
Norristown, Pa. 
Philadelphia. 
New Brighton, Pa. 
Ridgway, Pa. 
Greensburg, Pa. 
Pottsville, Pa. 
Philadelphia. 

Sunbury, Pa. 
Philadelphia. 



Norristown, Pa. 
Mercer, Pa. 
Greensburg, Pa. 
New Haven, Conn. 
Philadelphia. 
Newcastle, Pa. 
Philadelphia. 

Pottsville, Pa. 
Philadelphia. 
Beaver, Pa. 
Philadelphia. 



Dallas, George M. 
Davenport, Joshua 
Davis, J. B. 



Philadelphia. 
Davenport, Iowa. 
Norristown, Pa. 



IV 



SUBSCRIBERS TO THE FORUM. 



Davis, T. E. 
Dewees, F. P. 
Dietricli, N. P. 
Dillingham, J. P. 
Dilworth, W. T. - 
Dodge, W. H. 
Durnel, Henry 
Donnelly, Ignatius 
Dorris, Wm., Jr. 
Dougherty, D. 
Dougherty, George L. 
Drayton, Wni. H. 
Dreer, F. J. 
Drew, Joseph 
Dropsie, Moses A. 
Duff, A. D. 
Dunlevy, J. A. 
Dunlap, Thomas 
Dunn, James 

Eastman, H. W. 
Easton, D. T. 
Edwards, William A. 
Eldridge, G-. M. - 
Elton, Emmor 
Erety, George 

Fallon, C. & J. 
Feather, A. G. 
Fillmore, Millard - 
Findley, John K. - 
Fish, A. J. 
Fleming, D. 
Fisk, A. 
Fisher, John A. 
Forrest, Edwin 
Foster, H. D. 
Fox, D. M. - 



Lebanon, Tenn. . 

Pottsville, Pa. 

Williamsport, Pa. 

Woodville, Miss. 
Philadelphia. 
Adel, Iowa. 
Sunbury, Pa. 
Philadelphia. 
Huntingdon, Pa. 
Philadelphia. 



Media, Pa. 
Philadelphia. 
Benton, 111. 
Pittsburg, Pa. 
Philadelphia. 
Elmira, N. Y. 



New York. 
a 

Philadelphia. 

Westchester, Pa. 
Philadelphia. 

Philadelphia. 
Norristown. 
Buffalo, N. Y. 

Philadelphia. 

u 

Harrisburg, Pa. 
Sparta, Tenn. 
Harrisburg, Pa. 
Philadelphia. 
Greensburgh, Pa. 
Philadelphia. 



SUBSCRIBERS TO THE FORUM. 



Fox, Gr. Eodman 


Norristown, Pa. 


Flanigan, F. C. 


Pittsburg, Pa. 


Franklin, J. S. 


a 


Franklin, Thomas A. 


Lancaster, Pa. 


Frazier, N., Jr. 


Philadelphia. 


Freedley, Henry 


Norristown, Pa. 


Freeman, diaries D. 


Philadelphia. 


Futhey, J. Smith 


Westchester, Pa. 


Galbraith, John 


Erie, Pa. 


Gauze, L. E. 


Darkanaville, Tenn, 


Garten, Charles H. 


Norristown, Pa. 


Gerard, James W. 


New York. 


Gest, J. B. . . 


Philadelphia. 


Gibbons, Charles 


ii 


Gibson, James 


a 


Gilpin, Charles 


(C 


Gobrecht, Charles G. 


(( 


Goepp, C. . . . 


({ 


Golden, E. L. 


Kittanning, Pa. 


Golliday, C. J. - 


Lebanon, Tenn, 


Gowan, A. C. 


Philadelphia. 


Graeff, James H.- 


Pottsville, Pa. 


Graham, John 


Butler, Pa. 


Green, A. . . . 


New York. 


Greenfield, W. F. - 


Pine Blufi", Ark. 


Griscom, George - 


Philadelphia. 


Grout, H. T. = ■= 


" 


Guillou, C. - . , 


(( 


Gutman, Joseph, Jr. 


(I 


Hagert, H. S. 


Philadelphia, 


Hamilton, P. - - 


Mobile, Ala. 


Hall, A. Oakley - 


New York. 


Hancock, B. F. - 


Norristown, Pa. 


Hanna, John 


Philadelphia. 


Harlan Charles 


u 


Harrington & Goodman, 


(( 



VI 



SUBSCRIBERS TO THE FORUM. 



Harrison, G. L. 
Hasbrouck, C. 
Hasnell, J. Gr. 
Hazen, D. H. 
Hazlehurst, Isaac - 
Begins, C. W. 
Hepburn, H. 
Heyer, Frederick - 
Eeysham, Edward 
Hirst, William L. 
Hobart, J. H. 
Hopper, Edward - 
Hood, Samuel 
Hood, William B. 
Howard, Jobn K. - 
Hughes, Theodore J. 
Husbands, C. M. - 
Husband, W. A. - 
Hutchins, Mason F. 



Philadelphia. 

u 

Hardensburg, Ky. 
Pittsburg, Pa. 
Philadelphia. 
Pottsville, Pa. 
Pittsburg, Pa. 
Philadelphia. 



Norristown. 
Philadelphia. 



Lebanon, Tenn. 
Pottsville, Pa. 
Philadelphia. 



Imbrie, De Lorma - 
Ingersoll, Charles - 
Ingersoll, Edward - 
Ingersoll, Joseph R. 

Jacoby, W. - 
Janney, John 
Jenks, Gr. A. 
Jennings, H. L. 
Jermon, J. Wagner, 
Johnston, J. F. 
Johnson, Reverdy - 
Jolly, Wm. H. - 
Jones, Charles 
Jones, E. P. 
Jones, Horatio Gr. - 
Jones, Joshua 
Jordan, A.- 



Beaver, Pa. 
Philadelphia. 



Norristown, Pa. 
Leesburg, Va. 
Philadelphia. 
Chicago, 111. 
Philadelphia. 

Baltimore. 
Altoona, Pa. 
New York. 
Pittsburg, Pa. 
Philadelphia. 
Norristown. 
Sunbury, Pa, 



SUBSCRIBERS TO THE FORUM. 



vu 



Junkin, George, Jr. 
Juvenal, W. W. - 

Kagay, B. F. 
Keene, H. E. 
Kelly, William D. 
Keim, G. De B. - 
Kirkpatrick, J. M. 
Kissam, B. T. 
Kneass, Horn R. - 
Knox, Thomas P. - 
Kreider, Frederick C 
Kutz, Charles A. - 

Latimer, Thomas - 
Law, Edward E. - 
Lee, Robert M. - 
Lehman, William E. 
Lentz, Edward A. 
Lewis, Elisha J. - 
Lewis, Joseph J. - 
Lewis, William D. 
Lex, Charles E. 
Livingston, John - 
Loeser, Christopher, 
# Logan, Jos. M. 

Logan, Robert M. - 
Longaker, A. B. - 
Longaker, Henry, - 
Longstreth, J. Cooke 
Look, George H. - 
Longhead, Joseph P. 
Lowery, J. H. 
Lloyd, Clinton 

McAllister, W. G. - 
M'Call, Peter 
M^Calmont, A. B. - 



Philadelphia. 



Ewington, 111. 
Philadelphia. 

a 

Pottsville, Pa. 
Pittsburg, Pa. 
New York. 
Philadelphia. 
Norristown, Pa. 
Philadelphia. 
Milton, Pa. 

Philadelphia. 



Westchester. 
Philadelphia. 

u 

New York. 
Pottsville, Pa. 
Blountville, Tenn. 
Philadelphia. 

Norristown, Pa. 
u a 

u " 

Greensburg, Ind. 

Philadelphia. 

Elkton, Ky. 

Williamsport, Pa. 

Philadelphia. 
Pittsburg, Pa. 



VUl 



SUBSCRIBERS TO THE FORUM. 



M'Clure, A. 
M'Ckire, H. 
M'Crea, Jolin 
M'Elroy, George N. 
M'Elroy, William J. 
M 'Fiery, J. F. 
M'Guffin, L. L. and J. N. 
M'Intyre, John 
M'Mullen, N. G. - 
~ M'Nair, Jolm 
Mackey, Cliarles C. 
Maclean, Jolin 
Magaw, Samuel 
Mann, A. Jr. 

Marcer, J. F. 

Markland, J. G. - 

Markland, J. H. - 
^ Marshall, W. L. - 

Martin, A. B. 
■ Moran, P. A. 
. Maurice, W. H. - 

Maxwell, W. 

Mench, Ed. A. 
. Meredith, Wm. M. 

Michener, J. G. - 

Miller, Andrew 

Millette, J. G. 

Mitcheson, M. J. - 

Montgomery, J. P. 

Morris, Dewitt C.- 
Morris, D. S. 

Morris & Martin - 

Morris, P. Pemberton - 

Morse, N. B. 

Mulvany, D. H. - 

Myers, Leonard 



New York. 
Williamsport, Pa. 
Philadelphia. 
Lancaster, Pa. 
Philadelphia. 
Lebanon, Tenn. 
Newcastle, Pa. 
Phila^delphia. 
u 

Norristown, Pa. 
Philadelphia. 
Princeton, N. J. 
New Brighton, Pa. 
New York. 
Philadelphia. 



Lebanon, Tenn. 
Mercer, Pa. 
Philadelphia. 
Mercer, Pa. 
Philadelphia. 



Newcastle, Pa. 
Philadelphia. 

u 

New York. 
Norristown, Pa. 
Philadelphia. 



Neal, Chas. M. 



Philadelphia. 



SUBSCRIBERS TO THE FORUM. 



jSTewcombe, Bayse 
Nichols, E. H. 
Norris, Isaac 
JSTorris, S. H. 
North, Theodore 
Northrop, George 
Nott, Chas. C. 

O'Brien, John 
Orbison, W. P. 
O'Connor, Chas. 
O'Neill, Chas. 
O'Neill, J. P. 
Otterson, Jas. Jr. 



Philadelphia. 
New York. 
Philadelphia. 

Elmira, N. Y. 
Philadelphia. 
New York. 

Philadelphia. 
Huntingdon, Pa. 

New York. 
Philadelphia. 



Parker, C. A. 
Parker, A. H. 
Page, James 
Parsons, A. V. 
Patterson, W. H. 
Paxon, Ed. M. 
Peale, S. R. 
Pearson, Johnson 
Penrose, Chas. B. 
Perkins, S. H. 
Perrine, W. B. 
Pert, S. B. - 
Phillips, J. A. 
Phillips, Jonas B. 
Picketts, B. B. 
Pierce, Wm. S. 
Pollock, Robert 
Potter, C. N. 
Potts, Howard N. 
Price, Eli K. 
Price, Wm. S. 



Grouverneur, N. Y, 
Media, Pa. 
Philadelphia. 

Elmira, N. Y. 
Philadelphia. 
Lock Haven, Pa. 
Mercer, Pa. 
Philadelphia. 

Baltimore, Md. 
New York. 
Philadelphia. 
New York. 
Newcastle, Pa. 
Philadelphia. 
Pittsburg, Pa. 
New York. 
Philadelphia. 



Quay, M. S. - 



Beaver, Pa. 



•. SUBSCRIBERS TO THE FORUM. 

Quiggle, J. W. - - - PliiladelpHa. 



Rains, J. B. - 
Randall, Josiah 
Rankin, W. B. 
Reed, Wm. B. 
Remak, Gustavtis - 
Remick, "William - 
Ricliards, James H. 
Rielimond, H. L. - 
Richmond, A. B. - 
Risler, W. T. 
Roberts, R. P. 
Robinson J. H. 
Rose, W. G. 
Rowand, J. R. 
Ronckamp, F. H. - 
Rush, Benjamin 
Rush, J. Miu-ray - 

Scott, L. A. - 
Scott, R. M. - 
Scott, W. H. 
Scovel, James M. - 
Sergeant, Thomas - 
Sergeant, William - 
Seymore, Edmond B. 
ShaeflFer, Bartram A. 
Shea, G-eorge 
Sherman, Samuel - 
Shippen, Edward - 
Shippen, William, Jr. 
Shoener, John T. 
Sinnall, H. F. 
Skaats, B. 
Smith, A. H. 
Smith, E. L. 
Smith, J. B. 



London, Ala. 
Philadelphia. 



Pottsville, Pa. 
Meadville, Pa. 

u 
Philadelphia. 
Beaver, Pa. 
Mercer, Pa. 

a 
Philadelphia. 
Cincinnati, 0. 
Philadelphia. 



Philadelphia. 
Louisiana. 
New York. 
Camden, N. J. 
Philadelphia. 
u 

Evansville, Ind. 

Lancaster, Pa. 

New York. 
u 

Philadelphia. 

u 

Pottsville, Pa. 
Woodville, Miss. 
New York. 
Lancaster, Pa. 
Reading, Pa. 
New York. 



SUBSCRIBERS TO THE FORUM. 



XI 



Smith, James M. - 
Smith, James S. 
Smith, William 
Smyser, D. M. 
Sommers, J. B. Y. 
Sparks, Thomas 
Spencer, J. A. 
Spencer, Joshua 
Sproat, H. L. 
Stanard, John 
Stanton, S. S. 
Stevens, H. A • - 
Stevens, Simon 
Stevens, Thaddeus 
Stewart, A. M. 
Stewart, R. T. 
Stewart, T. M. 
Stewart, William 
Stokes, J. W. 
Stowe, E. H. 
Stout, A. G-. 
Stover, Lewis 
Strong, N. 
Stroud, G-eorge M. • 
Strouse, Meyer 
Sulger, Isaac 
Sutherland, Joel B. 
Swift, John 

Tarr, A. De Kalb 
Taylor, D. B. 
Taylor, Robert 
Tellow, F. R. 
Thayer, M. Russell 
Thompson, Aaron 
Thompson, H. 
Thompson, James 
Thompson, R. E. 



New York. 
Philadelphia. 

u 

Norristown, Pa. 
New York. 
Philadelphia. 

Utica, N. Y. 
Philadelphia. 
Pittsburg, Pa. 
Gainsborough, Tenn. 
Philadelphia. 
Lancaster, Pa. 

Philadelphia. 
Norristown, Pa. 
Philadelphia. 
Mercer, Pa. 
Philadelphia. 
Pittsburg, Pa. 
Philadelphia. 



Pottsville, Pa. 
Philadelphia. 



Philadelphia. 
New York. 
Mercer, Pa. 
New York. 
Philadelphia. 
a 

New York. 
Erie, Pa. 
Lebanon, Tenn. 



Xll 



SUBSCRIBERS TO THE FORUM. 



Thome, George W. 


Philadelphia. 


TituSj Jolin 


a 


Townsend, J. B. 


a 


Townshend, H. C - 


li 


Townshend, John 


New York. 


Trunkey, John 


Mercer, Pa. 


Tyler, John, Jr. 


Philadelphia. 


Underhill, R. 


New York. 


Underwood, J. M. - 


Greensburgh, Pa. 


Vanderveer, John M. 


Philadelphia. 


Vandyke, J. C 


a 


Vansant, S. T. 


" 


Vaux, Richard 


a 


Vicks, Alexander, W. 


Lebanon, Tenn. 


Walden, D. Y. - - 


New York. 


Wallace, J., William 


Philadelphia. 


Wallace, J., Wilson 


a 


Webb, J. L. - 


Somerville, Tenn. 


Welsh, M. B. - - 


Beaver, Pa. 


Wetherell, Samuel - 


Philadelphia. 


Wharton, Gleorge M. 


a 


Wharton, Thomas I. 


It 


Wheeler, Charles 


cc 


White, G-eorge 


Williamsport, Pa. 


Whitesell, J. - - - 


Pittsburg, Pa, 


Williams, Henry J. 


Philadelphia. 


Williams, Thomas 


Pittsburg, Pa. 


Wilson, A. P. - - 


Huntingdon, Pa. 


Wilson, Alexander - 


Philadelphia. 


Wilson, Samuel B. - 


Beaver, Pa. 


Wollaston, Greorge W. 


Philadelphia. 


Woodhull, Geo. S. - 


May's Landing, N, 


Woodward, G. W. - 


Philadelphia. 


Wyckoff, Peter 


a 


Zane, A. V. - 


Philadelphia. 


Zimmerman, Seth 


Mohrsville, Pa. 



^aliU nf ©flutriits. 



CHAPTER I., 25 

FoRE^"SIC ETHICS AND ETIQUETTE — Their importance to success at the bar — 
Nothing without them — Oath of student upon admission — Construction — 
All good "fidelity to court and client" — Its interpretation — "Delay no 
man's cause for love or malice," embraces both parties — Oaths make bad 
men worse — But rarely better — Best system of ethics derived from Divine 
authority, "Do unto others as you would be done by," &c. — Explained — 
Lord Brougham's notion of the duties of counsel in Queen's case — Not to 
be approved — Lord Erskine's — Sir Matthew Hale's — Chief Justice Gib- 
son's — A lawyer not responsible for motives of client — But for his own — 
Illustration — Not bound to take a case — Bound to refuse it, if unjust — 
Or to abandon it when he ascertains it to be so — Mingle kindness with 
performance of duty — Not to treat all cases alike, but according to 
desert — Right to take advantage of his power to support a good cause 
— But not to sustain a corrupt one — In matters of doubt may incline to 
his client — He can't decide a case — Nor is he answerable for its decision 
— Not to contribute to gratify the malignity of a party — Instance — He 
is no man's man — Bound to discourage vexatious suits — Not to be 
judged by results of cases — Good cases may be lost and bad cases 
succeed — ^When assured that a case is honest, fight it through. — Case 
of Commonwealth v. Von Vleit — Conviction — New trial — Acquittal — 
Case of Casuistry (ejectment) — Its discussion — Different opinions in re- 
gard to it — Criminal cases — Difference between them and civil — Guilt, 
VOL. II. — 2 



Xlv CONTEXTS. 

according to law— Judicial cruelty— Public prosecutions left to public 
officer— Private counsel should never take "blood money"— Cicero's 
opinion — Obligations of counsel for defendant in capital felonies — 
Counsel are rarely able to determine upon guilt of party— Have no 
rio-ht to do so — Young lawyer's notion rebuked — Dr. Johnson's opinion 

Rawle's opinion— Judge Sharswood's— Sir William Grant's— A lawyer 

cannot abandon a cause because it is hopeless — He often knows of a 
defence which he is unable to exhiljit by testimony — Instances — Course 
to be pursued on trial — Queen v. Courvoisier, for murder of Lord Rus- 
sell — Charge against Charles Phillips — Condemned — Case of Adam 

H n — Dr. Webster — Counsel depositary of client's secrets — Sigillum 

confessionis less sacred — Sometimes carried too far — Knowledge de- 
rived from client to be used for his benefit — Danger of being concerned 
for adversaries, even in different cases — Etiquette — Its original signifi- 
cation — Modification by time — Present use — Manners sometimes morals 
— Reverence f 07' age — Young cannot prosper without it — Forwardness 
— Vulgarity — Estimate among Greeks and Romans — Old age a " crown 
of glory" — Athenians and Lacedemonians — Due from court as well as 
bar — Mr. N.'s Rebuke — Young America will become olt America — 
Bench and bar comparative characters — How they should be considered 
— Talent, added to age, increases obligations and respect — Dress — Not 
essential, but respectful towards others — Philadelphia lawyer (note) — 
Mr. Dunning — Difference between a martinet and a soldier — A dandy, 
and a gentleman — Wigs and gowns laid aside — Necessary to be re- 
sumed — Deportment towards court — Appropriate apparel — Overcoats a 
disgrace — Court avoid these errors — Address — Standing up talking — 
Lounging — Dozing — Sobriety of the bar — Freedom from antipathies — 
Temper — Of court and counsel — Mutual indulgence — Their troubles 
and annoyances — Petulancy to be avoided — Composure preserved — 
Equality and self-possession great qualities — Business intercourse — 
Kindness to your juniors — Respect for seniors — Courtesy to all — 
(valuable note) — Etiquette of the office — System — Mind works bestwhen 
heart at ease — Accumulation of papers — Cleanliness — Neatness — 
Punctuality — who wants thatj^anis, everything — Keep appointments — 
Taking grace — Want of punctuality destructive of business — Clients — 
Consultation — Mode of receiving — Entitled to patient hearing — Profes- 
sional correspondence — Importance — Letters to be answered forth- 
with — Inconvenience and danger of omitting to answer Neatness of 

writing — Lord Nelson — General courtesy — Anecdote — Students — Re- 
quire more than books — Advice as to deportment — Deliver letters at 
once — Aaron Burr — Napoleon (note) — Additional re7narks upon court 
and counsel — Private interviews — Ex parte statements wrong — Unfaith- 
ful to court — Washington and Tilghman — Counsel bound to support 



CONTENTS. -jj-y 

the court In its proper province — Duty of court — Rights of jury — Ver- 
dict — Independence of bar — Brskine — Statute of Limitations plea — 
Contingent fees — Suits for fees discussed — lUustrative case — Mooney 
and Lloyd overruled — Cases cited. 



CHAPTER II., 76 

Henry Baldwin, l.l.d. — Succeeds to Judge Washington — Appointed by 
Jackson — would have been Secretary of the Treasury, if it had not been 
for his views of the tariff — Samuel D. Ingham Secretary — Birth — 
Graduates at Yale — Reads law with A. J. Dallas — Admitted to practice, 
1798 — ^Removes to Pittsburg — Extensive business — Talents and learn- 
ing — Congress — Fidelity to duties — Departure from forms adopted by 
Washington — Reception at Trenton — Judicial manners not equal to 
his predecessors — no reproach — Amiability of temper and kindness of 
feeling — Speculations — Effect upon Ms health — As an advocate — Ser- 
geant's opinion of him — Death — Highly appreciated character — De- 
scription of his person and manners — Great man with great men — hum- 
blest with the humble — Benefit of his difficulties — Rough school — Poor 
— Rich and poor — Overcomes his indolence by perseverance — Smoking 
injurious, particularly to a judge — His sensibility and desire of appro- 
bation — Health impaired — Mind shattered — Difficulty with the Re- 
porter of Decisions of the Supreme Court of the United States — Shak- 
speare — Letter to Chief Justice Marshall — Offensive motion for a new 
trial — Kindness and generosity of the Judge in relation to it — Judicial 
companionship with Judge Hopkinson — Description of Judge Hopkin- 
son — Death, 15th January, 1832 — Mind — Oratory — Great advocate — 
Not so great as a lawyer — Remarkable for repartee, not superior in 
this respect to Sampson Levy — Exordium to his speech upon the im- 
peachment of Judge Chase — Judge Baldwin died 21st of April, 1844 
— Harmony with Hopkinson — Although but little mental resemblance 
— Dr. Johnson's doctrine — Both eminent lawyers — Comparison — Ad- 
vocacy of Hopkinson — Succeeded by Judge Randall — Notice of Judge 
Randall — A Judge of Common Pleas — In 1842 appointed Judge of 
the District Court of the United States — Excellent qualities as a judge 
— Heavy responsibilities after the death of Judge Baldwin — His death. 

CHAPTER III., 91 

Robert Cooper Grier, l.l.d. — Introduction — Delicate task of speaking 
of the living — Their destiny not yet accomplished — Yet a public life 
should be subject to public scrutiny. — To speak justly of the living due 
to posterity — Oblivion the worst reproach — No eulogy but history — 



;^yi CONTENTS. 

Should neither praise without merit, nor condemn without cause — 
Faults in every profession — A Judas among the Disciples — Judge 
Grier's birth — Parentage — Residence — His education — Good Latin and 
Greek scholar — Enters Dickinson College half advanced — His aptitude 
in the classics — Attention to Chemistry — Graduates in 1812 — Returns 
to his father to assist him — His father dies in 1815 — Young Grier takes 
his place as principal of the College — Faithful to all his duties — Com- 
mences the study of law at Sunbury — Practises at Bloomsbury, Colum- 
bia County — Moves to Danville — Practice increases — Appointed Judge 
• of District Court of Allegheny — 4th of May, 1846, appointed Justice of 
the Supreme Court of the United States — ^Removes to Philadelphia — 
Position on the bench — Judge Kane the District Judge — John Kintzing 
Kane — A graduate of Yale — admitted to practice in 1817 — Attorney 
General of Pennsylvania — Appointed in place of Judge Randall to the 
District Court — Character of Judge Kane — Amiable and pains-taking 
Judge — Cannot please everybody — But performs his duty — His age — 
Personal appearance — Early promise — High honor — And unstained 
fidelity — Return to Judge Grier — His age and vigor — Kindness of 
heart — not equal to Washington, though of more general knowledge — 
Personal appearance and manners — Less favorable to slavery than 
Baldwin, though not less observant of his duty. 

CHAPTER IV., 102 

Jeremiah S. Black, l.l.d. — Law undqr which elected — Judge Black 
becomes Chief Justice — Terms chosen by other judges — Born in So- 
merset county, 1810 — Good education — Devoted to English literature — 
Books wanted — Fondness for Shakspeare — Better poet than farmer — 
Becomes a student in the office of Chauncey Forward — Admitted in 
1831 — Large business through his own industry and his father's influ- 
ence — Appointed in 1842 Judge of Common Pleas — Extensive cir- 
cuit — Continued until 1851, when elected to Supreme Court, and be- 
comes Chief Justice — Deportment in banc and at Nisi Prius — His 
opinions — Style of his composition — Where did he obtain it — Read 
much — His alacrity in discharge of his official duties — Directness of 
his opinions — Description of his person — Judicial courage and impar- 
tiality — Quick, but not hasty — No commonplace man — His eulogy 
upon Chief Justice Gibson — Memoir of General Jackson — Extracts 
from both. 



CHAPTER v., . . ... . . . . .118 

Ellis Lewis, l.l.d. — Present Chief Justice — Born in Lewisburg — Age 



CONTEXTS. Xvii 

— Ancestors — Brothers — Loses his parents at nine years of age — 
Enters a printing-office — Goes to New York — Returns to Lewisburg — 
Studies medicine — Goes to Baltimore to resume his business as a prin- 
ter — Does not succeed — Betakes himself to Williamsport — Studies law 
in 1820— Admitted in 1822, and marries— In 1823 becomes Deputy 
Attorney General — Faithful to his duties — Labors under distressing 
diseases — Carried to York — ^Restored to health — Removes to Bradford 
— Lucrative business — Enters the political arena — Sent to State Con- 
vention — Elected to legislature — Appointed Attorney General — 1833 
resigns, having been appointed Judge of Common Pleas — Continues in 
that office twelve years — Appointed to Second Judicial District, (City of 
Lancaster) — Professor of Law and Medical Jurisprudence in Franklin 
College — Conducts a law journal — Amusing anecdote of a reversal 
of the judgment of a Lynch Court — Case of Commonwealth v. Arm- 
strong — Parental authority — Judge Lems's able opinion — Approval 
and commendation by Chancellor Kent — Judge Grier — Dr. Wayland — 
Judge Lewis receives the degree of Doctor of Laws — 1851, elected to 
Supreme Court, and succeeds to Black, as Chief Justice — His un- 
equalled industry and undoubted competency — The diversity of his 
attainments — Personal description — Humane Judge — Indulgent to xhe 
young — Courteous and impartial. 



CHAPTER VL, .......... 134 

Justices of supreme court — Justice Woodward — Judicial qualities — 
Learning — Morality and manners — Judges have hard time — Can't please 
everybody — Judges have duties as well as counsel, and are not unduly to 
be complained of— Judge Woodward's birth — Parentage and training 
— Studies law with Judge MaUary — Admitted to practice — Upon Mal- 
lary's appointment, business transferred to Woodward — His industry, 
fidelity, and ability — Rapid advancement — Health fails — Becomes 
president of Fourth Judicial District — Term of office expires in 1851— 
Declines reelection — Declines a nomination, on State ticket, for Supreme 
Court — ^Returns to practice — Upon death of Judge Coulter, in 1852, 
appointed by Executive in his place — Afterwards elected for fifteen years 
— Age and personal appearance — Deportment on the bench — His 
charges and opinions — Resemblance to Judge Gibson in person, not in 
mind — Mental differences — Member of the convention — Speech on judi- 
cial tenure. 
Justice Knox — Birth — Family — Education — Admitted to the bar, in 
1839— Appointed Deputy Attorney General, in 1840, for Tioga— Con- 
tinues three years- Elected to the legislature — Popularity— Receives all 
the democratic votes for speaker— Appointed, in 1848, Judge of Tenth 



Xviii CONTENTS. 

Judicial District — Under the elective system, in 1851, chosen President- 
Judge of Eighteenth Judicial District — May, 1853, appointed provision- 
ally to fill the vacancy occasioned by death of Judge Gibson, on bench of 
Supreme Court — October of same year, elected to fiU same post for fif- 
teen years — Industry and character of his judicial services — His man- 
ners — Temper — Person. 

Justice Lowrt — His punctuality — His reading — Well-posted in cases — 
Civil code — A conscientious, and decorous judge — Not well adapted 
to Nisi Prius — Patient, but premature — Justice not to be sacri- 
ficed to time — The counsel and jury to be considered, as well as the 
court — Hasty opinions pernicious, and sometimes incurable — Judge 
Lowry a great favorite in banc, but not at Nisi Prius — Throws his im- 

■ pressions o^ facts too much into the jury-box — Contrary to the policy of 
jury trials — On 1st of January, 1851, he became, by election, a judge 
of Supreme Court — Excellent qualifications for that post — To which he 
was transferred from the judgeship of the District Court of Allegheny, 
where he had succeeded to Judge Grier — His urbanity of manner, and 
purity of intention — His age — Size — Features, &c. — His inflexible firm- 
ness — A very good, or a very bad, quality — Better, at all events, than a 
JUDICIAL weathercock: — General remarks on the court — Its terms and 
its prospects. 



CHAPTER VII., 151 

District court for city and county of Philadelphia — Most efficient 
court in the State — Sits ten months in a year — Organized in 1811 — 
Its incumbents, powers and jurisdiction — Terms — Judges — Eemodeled 
in 1835 — Early judges — Present constitution. 

George Sharswood, l.l.d. (President) — Birth — Graduated with high 
honors — Becomes a student of law with J. R. IngersoU — Admitted to 
practice — His studies after admission — His indefatigable labor — A 
model for a student — Thoughtful, cheerful, modest — ^Would not have 
been an effective jury lawyer — hut unequalled in an argument in bane 
— Elected to legislature — To select council — Again elected to legisla- 
ture — Received, in 1845, appointment of judge of District Court — 1848, 
becomes President — In 1851 elected President of the court — Abundant 
capacity — Chosen Professor of Law in University of Pennsylvania — 
Lectures before Commercial Institute — Patience, industry, and energy 
— Personal description — But one defect in judicial manner — Excellent 
mode of charging a jury — Great clearness, precision, simplicity, and 
impartiality. 

George M'Dowell Stroud, l.l.d. — Competency, rectitude and industry 
— Appointed judge in 1835 — The only objection in the earlier part of 



C N T E x\ T S. ^^^ 

his career, was too great strictness and rapidity — previously unusual, 
. and never surpassed— Reason for this— Its advantages at the time- 
After ten years, returns to the bar — Continues nearly three years — 
Again appointed judge— Dec, 1851, elected for ten years— Calendar 
or list diminished by industry of the court— Held in high considera- 
tion—Their equality— Courtesy— Judge Stroud of a Quaker stock- 
Born in Stroudsburg, 1793— Educated at Princeton College— Graduated 
with honor— Became a student of law with Judge Hallowell— Ad- 
mitted, and commences practice under most favorable auspices— Mar- 
ries the daughter of his preceptor— Judge Hallowell's business and 
influence passes to his son-in-law— Had Mr. Stroud declined ofBce, he 
would have ranked with the ablest members of the bar— He was well- 
founded in legal principles— Familiar with cases— Excellent and prompt 
memory, and great quickness of apprehension— His temper— His 
generosity— His active charity— His age and personal appearance— 
His various publications. 
J. I. Clark Hare, l.l.d. — With few exceptions, the youngest judge in 
Pennsylvania— His ancestry— Birth— Graduates at Pennsylvania Uni- 
versity — Studies law with William M. Meredith, (an able lawyer,) and 
admitted to practice in 1841— (Vide note)— His improvement of time 
— Influence of his excellent manners — His law publications — Married 
a daughter of Mr. Binney— In October, 1851, nominated for judge- 
Elected by a large majority — A judge for ten years, from. December, 
1851 — He would have been a successful advocate — His social and judi- 
cial deportment — His person described — His advantages on the bench 
— An accomplished gentleman and a good judge. 



CHAPTER VIII., 169 

The judges of the court of common pleas — The first judge, Benja- 
min Chew — Succeeded by John Coxe — Upon his resignation, Jacob 
Rush appointed — Judge Rush a graduate of Princeton — A man of 

' ability, and great firmness and decision of character — Eloquent — Ex- 
amples — Charges to jury, upon moral and religious subjects — Died in 
1820 — Succeeded by John Hallowell — Judge Hallowell an eminent 
lawyer — very satisfactory to the bar — Not a man of much industry — 
His situation rather irksome — In April, 1825, transferred to District 
Court, to make room for Edward King in the Common Pleas — The 
machinery by which this exchange was brought about — Judge King's 
appointment not generally satisfactory at first — He proved an admi- 
rable judge — Equal to any in civil matters, and superior in criminal 
cases — ^His charges — Want of firmness — Of gravity — Impaired judicial 
influence — His manners — His improvement — His high judicial repu- 



■X;x ■ CONTENTS. 

tation when superseded — His early education — His industry — His abili- 
ties overcame his faults. 

Judge Randall, (one of the Associates,) afterwards transferred to Dis- 
trict Court of United States — Modest deportment — A great favorite — 
Always equal to his duty — Never one jot above it — Education limited 
— Good sense abundant — The just medium — Succeeded by James 
Campbell, present Post-Master-General of the United States. 

J. RicHTER Jones — Another Associate — Conscientious — Superior to Ran- 
dall in literary, but not scientific knowledge — Not deficient in decision 
— Or in industry or integrity — In year 1851, judges became elective 
— Judge Parsons had resigned — Judge King and Campbell were 
dropped, and Oswald Thompson, William D. Kelly, and Joseph Alli- 
son were elected, and now form the court — General remarks upon the 
courts under the amended constitution. 

Oswald Thompson, l.l.d. — A judicious choice — His age — Place of birth 
— Personal appearance — Graduated at Princeton — Studied law under J. 
R. Ingersoll, and was admitted to practice in 1832 — Commissioned 
President Judge of First Judicial District, in 1851 — A well-read lawyer 
— Never enjoyed a large practice — His impartiality on the bench — 
Courtesy — Mildness and gentleness — Done much by his deportment to 
reconcile the public to an elective judiciary — His obstinacy or firmness 
— Founded in conscientiousness. 

William D. Kelly — Born in Northern Liberties — Read law with James 
Page — Admitted to practice lYth of April, 1841 — Deputy Attorney 
General in connection with F. I. Wharton — Associate Judge of the 
Common Pleas, in 1847, and afterwards elected, in 1851, by a large 
majority, to the same judicial post, under the new constitution — Early 
education limited — Fine natural parts — Energy and ambition — Placed 
in early life at a mechanical trade — Proud of it — Its advantages — An 
eloquent speaker — A philanthropist — Held in great favor — Present 
fidelity but evidence of future elevation. 

Joseph Allison — The youngest judge in Pennsylvania — Birth and pa- 
rentage — Studies law — Admitted in 1843 — Energy and perseverance — 
Modesty — His early promise at the bar and success in business — Un- 
stained morality — and kind heart — Great industry — Will make a dis- 
tinguished judge — Personal description — Commendable patience — De- 
votion to judicial duty. 



CHAPTER IX., 192 

Present relations of courts and counsel— Honest bar and bench 
found together— Their mutual dependence discussed— Courtesy of bar 
towards bench — Few instances to the contrary — Subserviency secures 



CONTENTS. Xxi 

favors — The court does not depend upon the bar — But the bar benefited 
by the court — Ambition for court favor — Judge Washington pro- 
nounced the Philadelphia bar, " the model bar of the United States" — 
Tendency of the courts lately against the advancement and interest of 
the profession, especially the younger members — Rules of court touching 
this subject, and their effects — Bad in civil cases — Worse in criminal 
cases — Of recent introduction — Its origin — Limitation of counsel — 
Limitation of speech, and time — Remarks from " Legal Intelligencer" 
— Cases exhibiting the severity and consequence of such rules, in the 
Nisi Prius — And Oyer and Terminer — Want of mutual respect and libe- 
rality between court and bar, produces mutual injury, besides affecting 
the community — Liberality between members of the bar should be pro- 
moted by the judges — Mr. H. J. Williams' application to release an 
antagonist from a nonsuit — Judicial views on the subject — Exception 
to those views, and the grounds thereof. 



CHAPTER X., 205 

JoHK Sergeant, l.l.d. — New era, in 1810 — Embracing members of 
bar admitted between 1790 and 1800, inclusive — The names of the pro- 
minent counsel — Their prospects and progress — (Vide note, relating to 
James Gibson and Anthony Morris, the only survivors of those admit- 
ted before the year 1792) — Mr. Sergeant — Early character, drawn by 
Mr. Binney — Parentage — Enters college — Graduates — Becomes a stu- 
dent in the office of Jared IngersoU — admitted, in 1799, under good 
auspices-— Died at the age of seventy-three— Forty years in large and 
lucrative practice — merited all confidence — His learning and piety — 
Died in November, 1852 — Unsuspecting character — Frankness — Broke 
down in his last speech at Washington, being over the age of seventy- 
Horace Binney — The last lone star, speaks of the mental powers of 
Mr. Sergeant — Description of Mr, Sergeant's person — Reference (in 
note) to his portrait — His power with a jury — His high character- 
Good general scholar— Devoted to legal and political science — His want 
of memory for poetry — His nervousness in commencing his speeches, 
in which he resembled Cicero, Fox, Townsend, and Burke — His great 
success — Warmth of heart — Great system and propriety — Youthful 
aspirants at the bar — Confidence in a first speech, no indication of suc- 
cess — Mr. Sergeant — Magnanimity in regard to Schuylkill Navigation 
■ Company — He was the pride of the bar, and his great charms were his 
frankness, simplicity, and warmth of feeling. 



Xxii CONTENTS. 

CHAPTEE XL, ... - 219 

Forensic medicine, or medical jurisprudence — its importance to 
LAWYERS AND DOCTORS — The three great sciences — their designs — 
Theology — Medicine — and Law — The necessities for a knowledge of 
Forensic Medicine — Disciples of one science should have a knowledge 
of their sister sciences — ignorance of lawyers on subjects of medical 
science — The greater ignorance of Metaphysics — In France and Italy, 
the knowledge of Forensic Medicine required in order to admission 
to practice — Doctors know less of the law than lawyers know of medi- 
cine — Doctors as witnesses — Their duties — Their unwillingness to con- 
fess want of knowledge — Frost's case — The case of suicide— Answer of 
Doctor Gibson — Description of suicide by Shakspeare — The objects of 
medical jurisprudence — The folly of the doctrine that a knowledge of 
one science is incompatible with that of another — Doctor Rush and his 
opinions — Physicians, as witnesses, should be very cautious in their 
opinions affecting human life — So chemists in regard to poisons and 
their tests, in testifying, should be as explicit as possible, and avoid 
all unnecessary technical terms — Cases of poison referred to — New- 
fangled systems, or experiments, require the tests of time and ex- 
perience. 



CHAPTER XIL, 242 

Good fellowship of the bar — Liberality and Harmony of the body 
of the profession — no irreconcilable difference for half a century — 
more than can be said of other bodies of literary and scientific men — 
Medical faculty the reverse — Their differences proverbial — Rarely shake 
hands — The cause of this and of the superior amicable relations of the 
bar — Doctors of divinity — Advantage of intercourse with society — A 
difference between worldly men and worldly ministers — Worldly men 
do not know the world — Clergymen mingle, like doctors of medicine, 
too little in society — Too much reserve — Acerbity not necessary to 
their divine office — Not the lesson taught by their great Exemplar — 
Cause of the good fellowship of the bar — Brought into amicable relations 
by their clients — The true interests of the bar adverse to professional 
feuds — Excitement in debate — Mutual forbearance — The battle is lost 
and won, and all differences forgotten or forgiven — Zeal in argument 
does not indicate anger, but is rather a safety-valve to pent-up feeling — 
Lawyers rarely lose their self-command — An irritable man will never 
prosper, and renders himself more unhappy than he does others — A 
shrewd adversary can destroy him— He is shunned by his brethren and 
loses his clients — mutual confidence of the bar. 



CONTENTS. Xxiii 

GHAPTER XIII,, - 251 

English and American practice. — Introduction — Passing notice of Ro- 
man law and advocates — Athens — England — Division of the profession 
into Attorneys, Special Pleaders, Barristers and Sergeants — In the 
United States these different departments are combined — Barristers 
here not dependent upon attorneys — No division of labor — Difference 
between the lawyers and orators of Rome, and the attorneys and counsel 
of England and the lawyers of the United States — The labours and ad- 
vantages of the American system — Objections to the English practice 
— Queen v. Strange — Disadvantage of special pleading — Dilatory pleas 
lately discouraged in England — Extract from an essay on the Eng- 
lish bar, taken from Blackwood's Magazine — Valuable suggestions as 
to the necessary qualifications of a lawyer — Education too much ne- 
glected — Admission too easy — Injurious to the character of the bar and 
to the community. 



CHAPTER XIV., 267 

Ornamenta bationalia, or germs and gems of genius — Taken from 
the Diary of the author of the Forum — Original and selected. 

CHAPTER XV., 333 

Anecdotes and wit of the bench and bar. 

CHAPTER XVI., 405 

Romance of the forum, or, facts against fiction — The suicide — 
Case of Lucretia Chapman — Love, jealousy, and murder — Murder and 
magnanimity — Supposed mutual murder — Infanticide — Case of Dr. 
Eldridge ; forgery — Perils of infidelity — Trial of John Windsor for mur- 
der — Insanity — Reason and method in madness — The craft of insanitv 
— Walking on the water — Double insanity — Von Vleit's case — Julia 

Macbeth — Princess Carraboo — The United States v. , before 

Judge Kane — Case of Commonwealth v. Russell — Defeating a rogue — 

George G- . — Case of conscience — Case of Felix Murray — Question 

of personal identity — Remarks. 

CHAPTER XVIL, . . . : 515 

Literature of the bar. 

CONCLUSION, 519 



THE FORU 



CHAPTER I. 

FORENSIC ETHICS AND ETIQUETTE. '"•'' 

We opened our first volume with an Essay upon 
Forensic Eloquence. We now introduce the second, 
with what are quite as essential to honorable eleva- 
tion at the Bar — Ethics and Etiquette. Eloquence may 
enable us to obtain practice, but Ethics and Etiquette 
can alone render it secure and permanent. Good 
morals and good manners would seem to belong to 
each other J and we therefore take leave to unite them. 
Without these, the golden round of professional fame 
can never be attained — indeed, nothuig can be accom- 
plished : — 

" Every grace that marks the orator, 
The force of rhetoric and flowers of speech 
VOL. II. — 3 



2Q THE FORUM. 

That Athens practised, or Minerva taught, 
Thongh all were summoned to j^erform the task, 
Would all be bafBed in the weak attempt." 



In entering upon the practice of tlie law, the candi- 
date, while assuming what the Romans called the to^a 
virilis, takes an oath, " To support the Constitution of the 
United States and of the State, wherein he is admitted 
— to behave himself in the office of an attorney, accord- 
ing to the best of his knowledge and ability, and with 
all good fidelity, as well to the Court as to the client— 
to use no falsehood, nor delay any person's cause for 
lucre or malice." 

Properly understood, he is not only bound not to 
delay his dienfs cause for lucre or malice, but not to 
delay /or his client, the cause of his adversary, unless 
where it is believed to be necessary, for the purpose 
of doing justice to the case he supports. He must 
not knowingly do wrong to any one, but always re- 
member that he is a minister of justice. 

Such, then, is the oath taken by every member of 
the bar, upon his admission. That part of it which 
relates to supporting the Constitution of the United 
States and of the State, resulted, from comparatively 
recent enactment, but the other portion was the form 
of qualification prescribed by .the Act of Assembly of 
Pennsylvania, of 1752. The force and effect, how- 
ever, of this obligation, depends, at last, upon its con- 



ETHICS AND ETIQUETTE. 27 

scientions interpretation. It may be so restricted as 
to. render it almost ineffective — like all human provi- 
sions, safeguards, or inventions, it may be invaded or 
avoided by the craft or cunning of bad men. 

The phrase, "All good fidelity to the Court and 
the client," might be construed to mean more devo- 
tion or obsequiousness than sound morality would 
require or allow. And the phrase, " Nor delay any 
man's cause for lucre or malice," if restricted as some 
appear inclined to restrict it, to the delay of your own 
client's cause, would, we think, obviously fall short of 
the spirit of that portion of the oath, " which requires 
that 3^ou should delay no man's cause." So that it 
comes to this, that the potency of the oatK depends , 
as much upon the principles of him who takes it, as 
upon its own terms. Oaths may make bad men worse, 
but rarely make bad men better. 

The system of ethics that is derived from such an 
oath, may, or may not, be worthy of approval. The 
best system of forensic ethics or moral philosophy, as 
applied to the legal duties of men, is of divine autho- 
rity : " Do unto others as you would be done by ;" 
that is, as you justly deserve to be done by; "Love 
your neighbors (or your clients,) as yourself;" which 
means, do the same justice to them that in their con- 
dition you would be rightly entitled to expect — ^you 
are not to do more for them than you would rightly 
expect ; nor to love them better than yourself — not to 



28 THE FORUM. 

sacrifice your conscience or your heavenly hope to 
them — and certainly not to adopt Lord Brougham's 
notions, in his defence of Queen Caroline before the 
House of Lords, which run thus : — 

" An advocate, by tlie sacred duty he owes lais client, knows, in 
the discharge of that office, but one person in the world — ^his 
client, and none others. To save his client, by all expedient 
means ; to protect that client at all hazards and costs, to all others, 
and amongst others^ to himself, is the highest and most unquestioned 
of his duties; and he must not regard the alarm, the suffering, 
the torment, the destruction which he may bring upon any other. 
Nay, separating even the duties of a patriot from those of an advo- 
cate, and casting them, if need be, to the winds, he must go on, 
reckless of the consequences, if his fate it should unhappily be, to 
involve his country in confusion for his client's protection." 

These principles — if they are so to be considered — 
being uttered, no doubt, under high professional excite- 
ment, can certainly never be approved by any just or 
reasonable man. They would, if carried out to the 
extent suggested, make the advocate worse than a 
highwayman, and r,ender him, under cover of the law, 
a virtual outlaw. 

Lord Erskine maintains almost as bold, but much 
more tenable ground, in holding this language : — 

" I will for ever, and at all hazards, assert the dignity, inde- 
pendence, and integrity of the English Bar, without which, impar- 



ETHICS AND ETIQUETTE. 29 

tial justice — the most valuable part of the English Constitution — 
can have no existence. From the moment that any advocate can 
be permitted to say, that he will, or will not, stand between the 
crown and the subject arraigned, in the court where he daily sits to 
practise — from that moment Jhe liberties of England are at an end. 
If the advocate refuses to defend, from what he may thiiik of the 
charge or the defence, he assumes the character of the judge — 
nay, he assumes it before the hour of judgment, and in proportion 
to his rank and reputation, puts the heavy influence, of perhaps a 
mistaken opinion, into the scale against the accused, in whose 
favor the benevolent principles of the English law make all pre- 
sumptions, and in which they command the very judge to be his 
counsel." 

The doctrine of Lord Hale, however, comes nearer 
to the true rule, than either of the great authorities to 
which I have adverted, when he says : — 

" I never thought that my profession should either necessitate a 
man to use his eloquence, by extenuations or aggravations, to make 
any thing look worse or better than it deserves, or could justify a 
man in it : to prostitute my eloquence or rhetoric in such a way, I 
ever held to be most basely mercenary, and that it was below the 
worth of a man, much more a Christian, to do so." 

But Chief Justice Gibson places the obligation of 
counsel upon a much more honorable and conscien- 
tious footing, than any of these distinguished Lords, in 
2 Barr's Pennsylvania State Reports, 189 : — 

^' It is," says he, "a popular, but gross mistake, to suppose that 



30 THE FORUM. 

a lawyer owes no fidelity to any one except liis client, and that the 
latter is the keeper of his professional conscience. * * * 

" He violates his official oath, when he consciously presses for 
an unjust judgment; much more so, when he presses for the con- 
viction of an innocent man. * * * The high and honorable office of 
a counsel, would he degraded to that of a mercenary, were he com- 
pelled to do the biddings of his client against the dictates of his 
conscience." 

A lawyer is not morally responsible for the act or 
motive of a party, in maintaining an unjust cause, but 
lie is morally responsible, if lie does it knowingly, 
lioweyer lie may "plate sin with gold." We do not 
speak now of the mere impression or opinion of coun- 
sel, but actual Jcnoivledge. Suppose an action brought 
to recover from a widow or an orphan, all they have 
in the world, and the counsel is informed that only 
half the money was due by the husband or father of 
defendant, as co-partner with the plaintiff, and these 
facts could not be shown by defendant — what lawyer 
would claim to recover in such a case? We repeat it, a 
lawyer is bound to refuse a case that he believes to be 
dishonest, or to retire from it, the moment he discovers it 
to be so. And he is also bound to avoid litigation, unless 
it is necessary, and when necessary or unavoidable, al- 
ways to adopt the least offensive means for bringing it to 
a satisfactory result. The law is the handmaid of jus- 
tice, and in its administration should never be attended 
with undue severity or malevolence. He is not bound, 



ETHICS AND ETIQUETTE. 3]^ 

even in every just cause, to accept the retainer of his 
client or to bring a suit. Some men profess the doc- 
trine, that a lawyer might sue his own father, or any 
other person. That would he a gross impropriety, and 
would ruin any man that would perpetrate it. Do- 
mestic and social obligations are always to be regarded. 
Even suits against members of your own profession, 
should always be reluctantly and delicately entered 
into, and except in rare cases, never with the exac- 
tion of professional compensation. In short, always 
mingle as much kindness as possible, with the perform- 
ance of duty; and you never will, or never ought to, 
make an enemy or lose a friend. When we say as 
much kmdness as is possible, it is not to be understood 
that you are to treat all cases alike, in this respect. 
Kindness to some, would be a dereliction from duty. 
The heartless oppressor, the crafty trickster, the bold 
and blushless villain, the wanton calumniator, or the 
cold-blooded assassin, hardly belong to humanity, and 
can scarcely claim the protection of human sympathy 
or generosity. 

A lawyer has a right to take all the advantage his 
learning and talents afford him, in order to sustain a 
good cause or defeat a corrupt one ; but he has no privi- 
lege to substitute his talents or learning for the honesty 
of a case, and thereby render iniquity triumphant. 
Where he has doubts as to the correctness of Ms posi- 
tions, he may fairly incline in favor of the ■ party he 



32 THEFORUM. 

represents, and sustain Ms views by every authority 
and fact that the law or evidence may supply, leaving 
it, of course, to the court and jury to ratify or reject 
them. He is not to decide the case, nor is he morally 
answerable for the correctness of its decision ; but he 
is answerable for the correctness of the motives by 
which he is influenced. We are not about to suggest 
a reward for a virtue, for that would be to render the 
virtue questionable ; but this we may say, that if an 
advocate were always governed by this principle, 
though he may not always gain his cases, he would at 
least, always be certain to gain such cases as he did 
not deserve to lose. 

He is not only not knowingly to urge an unjust 
cause, but he is not to contribute to the gratification 
of his chent's malignant passions, in the discussion 
of any cause, however just, but as far as he can, 
retui'n good for evil. A chent called suddenly upon 
counsel, and laid a heavy fee upon the table — "I 
am," said he, " the defendant in a case which is now 
going on, and I wish to engage you, and hope you will 
treat the opposing party with some severity, as he has 
practised great severity upon me." "Before I take 
your fee," said the lawyer, "let us understand each 
other ; do you wish me to treat the plaintiff with se- 
verity, whether I may think he deserves it or not ? If 
I think he deserves it, I shall do it without your stipu- 
lation ; and if I think he does not deserve it, I shall 



ETHICS AND ETIQUETTE. 33 

not do it for any fee you can pay." Of course, the 
client saw his folly, and the case proceeded upon the 
fair and honorable terms of the counsel. 

A lawyer, we assert, is not bound to take every cause 
that is tendered to him — ^he is no man's man. He is the 
adviser, but not the slave or serf of his client. He is 
not only not bound to take a case which he clearly 
perceives to be unconscientious, but he is bound to 
discourage its institution. Yet it must not be sup- 
posed, because counsel may fail in the result, that the 
cause was unfounded and unworthy of support — much 
less that he Jcnew it to be so. Sometimes the most 
honest case may be destitute of evidence to sup- 
port it ; whereas, upon the opposite side, craft, indus- 
try and fraud, may present impassable obstacles to 
recovery. The counsel is not to be adjudged merely 
from results, or from the opinion of those, who know 
nothing of the condition of the parties and their rela- 
tive rights, but what appears upon the trial. Every 
lawyer knows that there are cases in which he is per- 
fectly assured of two things — first, the honesty of the 
case ; secondly, the corruption of the adversary. And 
yet he is almost as certain that his case must fail, and 
the opposite party triumph. What is he to do ? He 
is to lead the forlorn hope — throw himself into " the 
imminent deadly breach ;" and, to use a strong figure, 
conquer or die. What can the spectators or auditors 
know, while they presume to judge him, of the nature 



34 THE FORUM. ' ' 

of the information of wliicli lie is the sacred deposi- 
tory, and upon which must mainly depend the ques- 
tion as to his conscientious rectitude? There nei^er 
was a lawyer in full practice, who has not lost cases 
equal in merit to any that he ever gained. Death, " 
accident, loss of papers, absence of witnesses — too 
much confidence in the honesty and candor of the ad- 
verse party, an ignorant, partial, or prejudiced jury, 
and all the thousand shapes that craft may assume, 
and all "the ills that flesh is heir to," ma}^ defeat the 
best case and support the worst; and yet the counsel 
upon both sides may be utterly deceived or exempt 
from blame. To show a glaring case, in which men of 
the highest honor were concerned, let us direct atten- 
tion to The Commonwealth v. Van Yliet, a case of 
great notoriety and of unparalleled inicjuity. 

The defendant was prosecuted for having stolen 
three thousand dollars in foreign gold,- (sovereigns.) 
The prosecutrix swore that she had that amount of 
money, which she had been collecting for a long time ; 
that the prisoner upon one occasion introduced himself 
into her house, under pretence of desh-mg to buy old 
watches or jewelry; that at the time he entered she 
was engaged in counting her gold, but put it in her 
bureau, for the purpose of bringing down an old watch; 
that when she came down, after a few minutes conver- 
sation the prisoner left the house, and upon her then 
going to the drawer, the gold was gone. She swore, 



ETHICS AND ETIQUETTE. 35 

also, to the identity of the prisoner, who was a French- 
man and speaking very broken English, and somewhat 
' deformed in person. 

The next witness was a confederate, who testified 
that he knew the defendant, and had lived with him for 
about two weeks ; that on the day of the alleged loss 
of money, the defendant came home and had with him 
a large quantity of gold, of the description sworn to ; 
that they counted it together, and that the number of 
sovereigns exactly corresponded with the amount lost ; 
that the day after, these sovereigns were melted down 
by the mint, and that the product, in new American 
coinage, was handed over to the defendant. The officer 
of the mint proved the meltmg, and the payment to 
the defendant. The new coin was all found on the 
person of the defendant. 

Now, upon this testimony, what could be plainer 
than the guilt of the defendant ? 

The defendant was a stranger — he denied his guilt ; 
nobody knew him. He averred he had brought the- 
money from Liverpool — ^produced some little evidence 
that he had such money on his arrival. But this would 
not do; he was convicted, and the money was about 
passing into the hands of the prosecutrix. 

Newly discovered testimony, was the ground of mo- 
tion for a new trial. The new trial was granted, and 
by consent of the Attorney General, a commission 
issued to England. 



3g THEFORUM. 

Upon the second trial it appeared tliat tlie prosecu- 
trix had no such money. 

That the defendant had received English sovereigns 
for French gold, in Liverpool. 

That he had employed the confederate to interpret 
for him for two weeks, and had counted the money 
with him, and then carried it to the mint and obtained 
in lieu, American gold. 

That having dismissed his interpreter, that person 
concocted the above scheme, with the prosecutrix, for 
the purpose of gratifying his revenge, obtaining the 
money, and dividing the spoils. 

He was, of course, acquitted. 

Three eminent gentlemen were concerned for the 
prosecution ; they, no doubt, thought the man guilty. 
The defendant's counsel were convinced of his innocence, 
but his isolated situation deprived him of the benefit of 
testimony. Indeed, if the rule which forbids a com- 
mission in a criminal case, had not been relaxed, he 
might probably have even been convicted on the second 
trial. 

As there is no difficulty as to what counsel should 
do in an honest, though feeble case, neither is there 
any question as to what he should do, when, after 
having been retained, he discovers that his case is un- 
sound and dishonest. He is bound to abandon the 
cause at once. He is not bound, as has been observed, 
to do more for a client than the client could justly do for 



ETHICS AND ETIQUETTE. 37" 

himself. Or if he has, in error, advanced so far in the 
cause, that he cannot abandon it without compromising 
too far the interests of his client, he must at least he 
careful, while he watches its progress, not to adopt 
its principles, and thereby forfeit his own self-respect 
and the approval of his own conscience. 

An action of ejectment was brought, many years 

ago, to recover a large tract of land lying in 

county. The defendants relied, for theii defence, upon 
an adverse possession of upwards of twenty-one years. 
The facts, so far as they are necessary to be known, 
are these : — The defendants entered upon a tract of 
several hundred acres, and cleared and occupied some 
four or five acres, leaving the remainder of the tract 
unenclosed and unimproved. Subsequently, however, 
to the original occupancy, they caused the rest of the 
tract to be marked off, the trees to be notched, &c., &c. 
The case came on for trial — as to the three or four 
acres, there was no difficulty ; but the struggle rested 
upon the rest of the tract. The defendants' counsel 
sent for the axe-carrier, who had notched the trees, 
but upon his private examination it appeared clearly, 
that the appropriation of the "debatable land" had 
been made but twelve years before the action brought. 
Then arose the question of ethics — and the first ques- 
tion was, whether they should examine their witness ? 
Of course that was easUy disposed of, and the witness 
was dismissed. This being done, the case went to the 



38 THE FORUM. 

jury upon tlie evidence and inferences as tliey previ- 
ously stood, and the trial eventuated in a verdict for 
the defendant for the entire tract. The counsel for 
defendant, however, were compelled, upon the argu- 
ment, to urge presumptions upon the jury; which, 
though consistent with the ei^dence submitted, were, 
of course, inconsistent with the actual state of the 
case, as it would have been exhibited by the axe- 
bearer. This verdict, though gratifying to professional 
pride, was not very satisfactory to the conscience of 
the counsel ; and having met the plaintiff, who was a 
man of wealth and liberality, they suggested to him, 
that as their chents were poor men, and as the case 
had been tried, they thought some terms might be 
agreed upon to settle the question forever, and to give 
the defendants a marketable title. "Very well," said 
the plaintiff, " the property is worth ten dollars an acre, 
but as you have got a verdict, and as you say the occu- 
pants are poor, let them pay me a dollar an acre for 
the land, and I will execute a deed to them." The 
money was paid — the conveyance executed, and the 
controversy ended. 

Upon this case being mentioned to some members 
of the bar, different opinions were expressed in relation 
to it. A gentleman of a high moral standard and an 
eminent lawyer, expressed the opinion, that the course 
pursued was entirely justifiable. First, because the 
counsel were not bound to call the witness, who would 



ETHICS AND ETIQUETTE. 39 

destroy tlieir client. Secondly, that tliey were per- 
mitted to maintain tliat, upon the evidence the plain- 
tiff was not entitled to recover. Another gentleman 
admitted the first proposition, but observed, in relation 
to the second, " that the defence did not rest upon any 
alleged insufficiency of the plaintiff's title, but upon 
maintaining affirmatively the possession of the defend- 
ant for twenty-one years, and endeavoring to induce 
the jury to believe what his counsel knew was not the 
fact f which was utterly inconsistent with every prm- 
ciple of moral philosophy. Even in a criminal case, 
which is the severest test to which counsel can be sub- 
jected — though counsel may contend that the case for 
the prosecution is not made out by the evidence — 
they have no right to contend that presumptions may 
be built upon the evidence, which, although the evi- 
dence may possibly warrant them, the counsel know 
to be contrary to fact and truth. 

In these remarks I have referred mostly to civil 
proceedings; it is proper that something should be 
said in regard to criminal, or State trials. There is, 
let it be remembered, a vast difference between civil 
and criminal cases. A sympathetic heart may be 
allowed to soften the rigor of the sternest and most 
inflexible justice. A man may be morally guilty — 
that is to be left to his Creator. The only question 
submitted to a court and jury is, whether he is guilty 
according to law — guilty . upon the issue tried. A 



40 THEFORUM. 

learned judge, forgetful of this principle, pressed the 
conviction of a prisoner, where the evidence was some- 
what doubtful, and gave, as a reason, that there had 
been several other charges against him. And the same 
judge passed a sentence of three years (the full limit 
of the law,) in a case of larceny ; stating, in excuse, 
that the prisoner had been acquitted upon a former bill, 
of robbery, of which he no doubt was guilty. 

Men, who take pubHc offices, must discharge public 
duty; but private counsel should never prosecute a capi- 
tal charge — never take blood money.* The Attorney 
General, or District Attorney, is bound to perform the 
function of pubhc prosecutor, yet even he should do it, 
firmly, liberally, humanely. He should be a " sacrificer, 
but no butcher." " Still," in the language of Cicero, "it 
is always more honorable to defend, than to prosecute. 
It seems to be the part of a harsh character, or rather 
of one that is scarcely a man, to bring the lives of men 
into jeopardy." In addition to this, it is not only more 

* A most atrocious murder, which occurred in Delaware county, bj 
which the feelings of the entire county were outraged and incensed, led 
to an application to a member of the bar of this city, whose services, it 
was supposed, would secure a conviction. He had scruples as to the pro- 
priety of taking the price of blood, and said so, but desired some time to 
consider the subject. He then wrote to Mr. Eawle, stating the case, and 
requesting his opinion. The answer was brief, and thus it ran : " Cicero 
thought, and I think so, too, that it is always more honorable to defend 
than to prosecute, where life or death is the issue." Of course the case 
was declined. 



ETHICS AND ETIQUETTE. 4]^ 

consistent with humanity, but with sound policy. It 
adds much to the general influence of the arguments of 
counsel. If a lawyer is found to-day prosecuting a petit 
larceny, and to-morrow defending a highway robber — 
mamtaining one sentiment at one time, and another at 
another, what confidence or reliance can be reposed m 
him ? Besides, it hardens the heart, and substitutes 
suspicion for confidence. 

But what are the obligations of counsel for a de- 
fendant in felony — and especially in capital felony? 
StiU to act conscientiously, to serve his cHent honestly, 
to the best of his abilities. He must utter no false- 
hood, resort to no subterfuge, and carefully guard 
the accused against every attempted invasion of his 
rights and privileges, either from court, counsel, or 
witnesses. The advocate is sworn to give to his 
client the fuU protection of the law, according to the 
best of his skill. But it may be asked, " Will you 
defend those whom you know, or strongly suspect, to 
be guilty ?" The answer is, " Counsel are, in most 
cases, not able, and perhaps, in no cases have the 
right, to determine the question that they are called 
upon to argue — its determination must depend upon 
the judges and the jury."* 

A young member of the bar, who has since reached 

* A lawyer is not to usurp the province of the jury and of the judge, 
and determine what shall be the effect of evidence, or what shall be the 
result of legal argument. — Dr. Johnson. 

VOL. II. 4 



42 THE FOEUM. 

some eminence, when applied to in a first case, which 
was somewhat complicated and doubtful, waited on 
the late Mr. E-awle, stated the case, and remarked at 
the same time, that he thought it a bad one. "You are," 
said Mr. Rawle, "a presumptuous young man, thus to 
venture in the outset to determine, what a comt and 
jury only can decide after hearing all the testimony." 
Judge Sharswood — at once a good example and 
high authority — in his able treatise upon professional 
ethics, has well defined the position of court and 
jury, when he says, " Every case is to be decided by 
the tribunal before which it is brought for adjudica- 
tion, upon the evidence and upon the principle of the 
law applicable to the facts, as they appear iq^on the 
evidence. No court or jury are invested with any 
arbitrary discretion to determine a cause according to 
then mere notions of justice. Such discretion, vested 
in any body of men, would constitute the most ap- 
palling of despotisms. Law, and justice accoeding to 
LAW ; this is the only secure principle upon which the 
controversies of men can be decided. It is better, 
on the whole, that a few particular cases of hardship 
and injustice, arising from a defect of evidence or the 
unbending character of some strict rule of law, should 
be endured, than that general insecurity should pervade 
the community."* 

^ It is not so material that these arbitrary rules should be fixed one 
^-ay or another, as that that they should be fixed.— ySzV William Grant. 



ETHICS AND ETIQUETTE. 43 

You might as well expect a physician or ia surgeon 
to abandon a patient, who he thinks must die, as to 
expect a lawyer to abandon a cause of which he has 
little hopes. It rarely, if ever, happens, that the 
offender in a grave criminal charge admits his guilt, 
even to his counsel. He may admit the bare act 
charged against him, but he suggests, in connexion 
with it, such causes, motives, and influences, as to de- 
prive the act of the essential character of a crime, or 
affect it, in its degree. A man is charged with mur- 
der — it is known, and he admits to his counsel, that 
he struck the fatal blow, but also states that the de^ 
ceased, at the instant, had treated him with great 
indignity — had pulled his nose, or spat upon him, or 
committed an outrage upon his domestic peace and 
honor. This is killing, it is true, but no murder, either 
in fm^o humano, or perhaps, in foro c&nscientki. What 
shall prevent honorable counsel from maintaining that, 
at most, it is but manslaughter, or Jiomicide se defendendo. 

The time of trial arrives — the counsel takes his po- 
sition by his client — he knows what, perhaps, no one 
else but that chent knows ; he carefully surrounds his 
defence with every possible safeguard — from a preju- 
diced jury, from zealous witnesses, from illegal ques- 
tions or answers, from perverted views of the law or 
evidence, from inflammatory appeals of the prosecuting 
counsel, and from the errors of the court. It is for 
the prosecution to prove its case. 



44 THE FORUM. 

After the prosecutor's case is established, of course 
the defendant's counsel is not to deny the blow, though 
he is not comjDelled to admit it. He is certainly not to 
suggest that the blow was struck by another. Heaven 
forbid ! but he is to introduce such evidence as he has, 
of general reputation, or relative or direct facts, tend- 
ing to furnish a correct view of the true character of 
the transaction, and the causes which gave rise to it. 
Certainly no Christian would deny the propriety of 
such a course. 

In the case of The Queen v. Courvoisier, for the mur- 
der of Lord William Hussell, it was charged against Mr. 
Charles Phillips, one of the counsel for the defend- 
ant, that after he had been informed by his client of 
his guilt, he actually attempted to maintain that the 
murder had been committed by a person known to 
be mnoceyit, in order to protect the prisoner against 
condign punishment.-"^' Now, such a course could rest 
only upon the erroneous and flagitious doctrine of Lord 
Brougham in the Queen's case. Certainly no dispas- 
sionate and honest man can justify or vindicate it for 
a moment. Where is the oath of the counsel, to "con- 
duct himself with all good fidelity, as well to the court 
as to the client." Where is his duty to himself? where 
is his still higher duty to the Judge of judges ? 

In the case of Adam H , who was tried for the 

* This proved to be an unfounded accusation. 



ETHICS AND ETIQUETTE. 45 

murder of his wife, and who afterwards dissected her 
body with a case-kiiife. The defendant, before trial, 
acknowledged his guilt to his counsel in Philadelphia, 
and afterwards confessed it upon the gallows; still, 
there were some flaws and discrepancies in the evi- 
dence for the prosecution, and a number of surgeons 
were honestly prepared to swear (and some on the 
trial did swear,) that the dissection was so skilful and 
scientific, that it was almost impossible that any man, 
except with appropriate surgical instruments, and with 
a knowledge of surgery, could have accomplished the 
dissection in the manner in which it was performed. 
The counsel knowing the guilt of his client, declined 
resting the defence on the ground that the prisoner had 
not committed the homicide — but was willing to rest 
it upon the alleged provocation to the act. Which, 
allow us to say, with great respect for those who 
know more and think differently, would have been the 
only available rehance for the unhappy Dr. Webster, 
charged with the murder of Dr. Parkman, of Massa- 
chusetts.* ■ 

Those who condemn professional men most, know 
the least of them., and censure in the very blindness of 
ignorance and prejudice. We do not believe a respect- 

* Adam H was defended by gentlemen of liigli legal character in 

Baltimore, Avho, not being cognizant of bis confession, were, of course, 
not embarrassed by any conscientious scruples, arising from such know- 
ledge. The defendant was convicted and executed. 



45 THE FORUM, 

able lawyer ever defended a prisoner, whom he had 
not some reason to think, if not innocent, not guilty to 
the extent of the charge. Can it then be required of 
counsel that, by withholding their aid, they shall not 
only 23rejudice a case, but prejudice it unfavorably to 
the party who has applied to them in his extremity, 
and who, according to his own statements, which he 
hopes to establish, is a man more sinned agamst than 
sinning. Certainly, the humanity of those Avho aid 
then' fellow-creatures in distress and imprisonment, is 
some voucher for the rectitude of those feelings from 
which that aid springs. 

The counsel is the depository of all the most import- 
ant secrets and interests of his client — life, hberty, 
property, character, every thing. And to say that 
they should be most religiously guarded and preserved, 
is to say no more than to remind him of honor's sacred 
tie, and the oath that binds him to fidelity. 

Even the " sigillwn confessionis' is nothing in compari- 
son with the sanctity and inviolability of the confidence 
reposed by a client in his legal adviser. Every thing 
entrusted to counsel that can possibly affect his client's 
interest, should be kept as close as "nature's tacitur- 
nity." Pvemember, you are "his other self," — no 
earthly power can compel you to reveal what he has 
confided to you — he may waive this protection, but 
you cannot violate its obligations. A lawyer who 
would, in any circumstances, divulge what he has 



ETHICS AND ETIQUETTE. ^^ 

learned under professional sanction, would at once, and 
directly lose caste. We have known this, however, 
carried to rather an absurd extent. There may be 
cases in which the communication might be of the ut- 
most importance to a client, and we are not so clear 
that the counsel is not bound — unless the chent forbids 
it — to give his chent the benefit of his evidence, where 
the injudicious examination of the opposite party affords 
the opportunity. This obligation does not only rest upon 
the lawyer in court, but it binds him wherever he may 
be. There is scarcely a lawyer in full practice, either 
in civil or criminal cases, who, if he divulged all that 
he must know of the affairs of his chenis, would not 
ruin a large portion of the community. 

Another rule to be observed is, always to consider 
that the knowledge derived from your chent, is held 
by you in trust, and can be used only, for his pur- 
poses. Suppose you hold two judgments against C, 
one for A. and the other for B. ; and B., whose judg- 
ment is the latest, directs you to issue a testatum execu- 
tion into the adjoining county against property belong- 
ing to defendant. You could not, with propriety, issue 
your execution upon the first, to the exclusion of the 
second judgment, allowing you are equally bound to 
both the clients — as he that is most vigilant, is most 
regarded in law and conscience. 

One of the most difficult positions, and most to be 
avoided, is to be the counsel of adversaries — of course 



^g THE FORUM. 

not in the same case — in different cases. It always 
leads to suspicion and confusion, even wliGn the man- 
agement of counsel is the most unexceptionable. But 
passing from morals to manners : — 

Etiquette, which originally signified but a card or 
ticket, or letter, by which intercourse or information 
between men was facilitated and improved, by the 
modification of time and fashion, has now become a 
word significant of the ceremonies that belong to the 
decorum of society. It still, in one sense, retains its 
original signification, although no longer confined or 
applied to its original purpose. Then it was a mark or 
card appended to a package, expressive of its contents. 
Now it has become a rule, regulating the manners and 
refinements of fashionable, professional, and social in- 
tercourse. It is our purpose simply to apply it to 
forensic life, and not merely as . relating to habits, but 
to the morals and influence of the profession. In- 
deed, it may almost be considered as vktually belong- 
ing to the ethics of the bar — manners are sometimes 
morals. 

Reverence for age. — No young man can prosper in 
his profession, who is unmindful of due respect to 
seniors at the bar. He that is so, breaks down his 
own safety and dignity, should he live to be old — in 
respecting them, he respects himself. Flippancy, fro- 
w^ardness, a forwardness exhibited by the youthful 
towards the aged barrister, is a mark of vulgarity 



ETHICS AND ETIQUETTE. 49 

and low breeding, which, however it might gratify the 
vulgar and the low^, must ever disgust those w^hose 
good opinion and support are worth preserving. We 
speak not now of comparative talents, but simply of 
years, or stages in life. 

In ancient Rome and Greece, gray hairs were con- 
sidered "a crown of glory" — at the forum, in the sen- 
ate, at the Olympic games — everywhere. We may all 
remember, from the reading of boyhood — W'hich, well 
applied, furnishes admirable lessons for after life — the 
anecdote related of an aged citizen, presenting him- 
self among a mixed and crowded assembly m Greece. 
The Athenians beckoned him to take a seat among 
them, but upon approaching for that purpose, they 
closed their ranks and laughed at his disappointment, 
whereupon, disgusted with this insolent cruelty, the 
youthful Lacedemonians at once relinquished their 
seats, to render the old man comfortable. " I see how 
it is," said the aged citizen, in terms of well-deserved 
rebuke, " the Athenians understand politeness, but the 
Lacedemonians practise it." Irreverence towards old 
age, in those ancient States never was tolerated, much 
less sanctioned. Themistocles was rebuked by Pho- 
cion for speaking out of his place, and taking prece- 
dence of his seniors. But there is a better rule, and 
of higher authority, which runs thus : " Speak, young 
man, if there be need of thee, and yet scarcely when 
thou art twice asked. If thou be among great men, 



gQ THE FORUM. 

make not thyself equal to them, and when ancient 
men are in place nse not many words." 

The senators, conscript fathers, nay, kings and 
tyrants almost always manifested due regard for age, 
and listened to its precepts with deference, or beheld 
its infirmities with sympathy. 

Among us, let it further be said, that respect for ad- 
vanced life, is not simply inculcated upon the bar— it is 
due from the court, itself, as an example to the bar. If 
we are considerate to the young, and encourage them 
where they falter, and raise them when they fall, we are 
equally bound to sympathise with second youth, and re- 
vere those men who, exhausted by a life of learning and 
labor, like dying ancestors, are dechning into the nar- 
row house, after having garnered up wisdom, experi- 
ence, and honors, of which we are to be the inheritors. 
"We must be pardoned in saying, that while respect for 
office is necessary, respect for old age is natural and 
most commendable. When, therefore, a judge U2Don 
the bench, elected by the " most sweet voices" of the 
populace, builds his hopes of popular distinction upon 
an assumption of learning superior to that of a man of 
twice his age; or familiar with some modern case, smiles 
at the venerable advocate, who ventures to refer to the 
ancient land-marks of the law, Ms faltering steps not 
having kept pace with modern improvements — -judicial 
vanity may be gratified, but prudence and propriety 
are forgotten. 



ETHICS AND ETIQUETTE. 51 

" That is not tlie law now/' said a learned judge 
'to Mr. N., "it has been overrnled by the case of Den 
V. Fen, published in the last volnme of Earr's Ee- 
ports, or in the Legal InteUigencer of last week." " I 
don't know," was the humble reply, "any thing of the 
case the court refers to ; I know that what I maintain 
tvas the undisputed law for more than a century — 
there have been no legislative changes ; the judges have 
been changed, it is true, and if the law has changed 
with them I did not know it, and I could not help it." 
^ Of course, the court have the right to suggest to the 
counsel what they please, in regard to the points of law 
involved in an argument; but there is a manner and a 
time for all things— they should aid the young, but they 
should, at least, hsten to the old. There is a wisdom in 
years, that at all events inculcates the propriety of an 
apparent deference to its opinions. Young America, we 
trust,, will live to be old America ; and the pernicious 
example of to-day will be a precedent for centuries 
to come. " The poisoned chalice shall be commended 
to our own lips," or the lips of those who, for want 
of a safeguard, become its ready victuns. The courts 
will sometunes listen for ten "mortal hours," to a 
speech made up of a " Eattle of the Books," refreshed 
only by an occasional comphmentary reference to recent 
newspaper opinions of their own. Eut everything that 
is older than the court itself, or the new constitution, 
in conformity with the spirit of the times, should not 



52 THE FORUM. 

be looked at with doubt^ or treated with contempt. 
Every new generation is wiser than the past. The 
pupils laugh at the lessons of the masters ; and even 
some judges forget that they derived their lofty honors, 
not from their superiority at the bar, their unequalled 
learning, or their great experience, but in some cases 
from then" party and political influences. Look at the 
judges before they graced the bench ! Did they. main- 
tain a higher position than their legal brethren ? Cer- 
tainly not. Does it require greater learning or talents 
to make an accomplished judge, than an eminent bar- 
rister ? Far from it — it requires different, but not bu- 
perior qualifications. The judge who decides, encoun- 
ters less difficulty than the advocate, who is to argue 
and to convince. The former is aided and instructed 
by the labor, research, and talents of the latter. We 
thmk, in all modesty it may be said, that the bar, in 
its different departments in this country, and in every 
part of the world, has always been, at least equal to the 
bench : it may be construed treason, to say more. It 
is true, there have been Hales, Holts, and Mansfields 
on the bench in England — and so have there been 
Erskines, Garrows, Dunnings, Plumers, Nortons, and 
Broughams, at the bar. True, there have been Mar- 
shall, Wasliingtons, Kents, and Tilghmans with us — 
and so have there been Pinckneys, Websters, Wirts, 
Lewises, Wilsons, Hamiltons, Ligersolls, Rawles, Bin- 
neys. Sergeants, Chaunceys, and a long list of forensic 



ETHICS A/ND ETIQUETTE. 53 

stars, that in their individual and accumnlated splen- 
dor "pale the ineffectual fire" of the judiciary. But to 
take another view, the judges in England have often 
heen suspected of pandering to a corrupt ministry, or 
a worthless king; whereas, there is no evidence on 
record, of a lawyer of any note, under any influence, 
ever having deserted or betrayed his post. An eminent 
lawyer writing on this subject, says : " The absurd tend- 
ency of the public mind seems to be, to giorif}^ the 
bench, even at the expense of the bar. According to 
my observation for thirty years, the bar has always 
been equal to the bench, in all qualities which adorn 
the profession in Pennsylvania." Rightly understood,, 
the judges and the bar should be considered as integral 
branches of a great system, relatively necessary to 
each other, and through each other to the community 
— deriving their utility and efficiency from their com- 
bined and harmonious adaptation to the great objects 
of public justice. So much for due reverence to age, 
independently of talent. 

If, with seniority you couiole lofty talent, the obliga- 
tions of respect are increased in strength. There is 
then an intellectual, as well as moral power, to which 
we should freely submit, not as slaves, but as generous 
aspirants for professional honors. This submission 
is the first step towards a superiority or equality of 
worth. A reverence for the great attainments of others, 
and their modest acknowledgment, gives an assurance 



54 THE FORUM. 

that we know their yalue and our oivn deficiencies. 
The man who is conscious of his own intellectual 
wants, will soon learn how to supply them. The man 
who clearly discerns his own faults, is surest to amend 
them ; and he that admires and aj)proYes the vu'tues 
of others, becomes incapable of envy, in the desire 
of rivalry. But to turn from the inner to the outer 
man: 

Dress. — It is certainly by no means essential to a 
member of the bar, that his dress should be studiously 
considered or nicely adjusted, but still a proper regard to 
decency of exterior and the claims of the profession, as 
evincing a becoming respect for the opinions of others, 
may contribute to enlarge his sphere of influence, and 
to recommend him to those portions of society whose 
perspicacity never enabled them to discover virtue in 
poverty, or genius in rags.* The annals of the bar in- 
form us that Dunning, the putative author of Junius, 
who became one of the chief lawyers of his time, lived 
for years in poverty, without a second coat to his 

* One of tlie best lawyers of his day, who was admitted in the year 
1791, and who for learning and acuteness, had but few suj^^^'i^rs, in the 
latter part of his professional life lost his fortune, and became careless of 
his personal appearance. His business, too, seemed to get thread-bare, 
with his apparel. In this state of things he complained to a friend, and 
asked what he would advise ? "I advise you," was the reply, " to order 
an entire new suit of black, shave every day, and take your stand regu- 
larly at the bar, that you may be seen of men — clients never flock around 
those who appear to stand in need of their support." 



ETHICS AND ETIQUETTE. 55 

back, and without a case on tlie docket. Tlie only 
Jiahits that recommended him to notice, were his habits 
of indiish'i/, and even those would hardly of them- 
selves have brought him into favor, but that the East 
India Company, in an emergency requiring immediate 
preparation, was referred to him, as having nothing 
else to do. He performed the work so much to theu' 
satisfaction, as to place him in a position in court 
which led to all his future fame and fortune. 

Further — -justice, in addition to her celestial quali- 
ties, is invested with female privileges, and is rarely to 
be wooed or won by neghg^t or slovenly suitors — a 
begrimed face or sullied hands scarcely become the 
purity of her temple, and the apparel of her ministers 
should be appropriately adapted to her august ceremo- 
nials and decrees. 

A martinet is one who, though prim and precise in 
dress and drill, shrinks from the scars of war — that is, 
he is all outside. A prig or a dandy is one who, while 
he wears fine clothes, wears them for his personal adorn- 
ment, is constantly in fear of their bemg injured, and 
tliinks of Httle else. But a gentleman, in the true 
sense of the word, is one wdio regards dress and fashion 
as a tribute to the usages of society, but as constituting 
no merit in liimself. 

We are no sticklers for wigs or gowns — the former 
often cover an empty pate, and the latter a hard or 
corrupt heart ; but a consistent professional dress, is 



56 THE FORUM. 

just as necessary in a court room, as is a fasliionable 
dress in a ball room, and mucli more important. 

In England, the bar at one time applied to Lord 
Denman for permission to lay aside their wigs and 
* gowns. His Lordship, like a reasonable man, gave 
permission, simply enjoining, in lieu thereof, that they 
should appear in what might be called a becoming 
court dress. For a few days the new regulation 
worked very well, but at last the bar seemed to have 
lost its identity. Clothes of all colors and descriptions 
were intermixed — " black spirits and wliite, blue spirits 
and gray," flitted through Westminster's sacred halls. 
The bar and the people were confounded together — 
manners were as much changed as habiKnients, and at 
last it became indispensable that the offcast trappings 
should be again resumed. 

But, as has been said, we are no advocates for the 
imitation of foreign example. Let a lawyer dress as 
he chooses, provided he always dresses as a gentle- 
man. We care nothing for the texture, value, color, or 
fashion of his garments. He should be clean ; for if 
he is dirty outside, rely upon it, he is dirty in. 

Dejjortment totvards the Court. — A lawyer should not 
address the Court with his gloves and overcoat on ; 
he might as well do so with his hat on. It is most 
remarkable that such matters should require to be 
mentioned, ordinary gentility would seem to forbid the 
necessity. Nay, he should not be permitted to remain 



ETHICS AND ETIQUETTE. 57' 

in court with his cloak or overcoat on, to the annoy- 
ance of every one about him, and to the disgrace of 
the har. The judges never fall into this error. They 
dress simply and becomingly, instead of carrying their 
whole wardrobe upon their backs. If the bar ever 
expects to be looked upon as a class, the success of 
their anticipations must depend upon themselves, and 
their due observance of high social and professional 
courtesy and refinement. 

Again, dress without consistent address, is nothing. 
We never saw a barrister standing up within the rails in 
Westminster Hall or Lincoln's Inn, unless he were 
engaged in a cause. We never saw one sitting in any 
manner unbecoming a gentleman — never saw one loll- 
ing upon a settee or dosing in his chair, or agitating or 
settling a personal dispute, or complaining of the court, 
or propitiating his chent upon a lost suit, or forgetting 
that he belonged to a privileged order, and was bound 
to act up to his high calhng. We are sorry to say, 
among us, there are not equal exterior observances of 
decorum. Still, though our manners are less conven- 
tional or artificial, we have some merits of which 
they cannot boast on the other side of the Atlantic. 
The members of the bar with us are more united in 
feeling, more liberal, less technical, less sectional, and 
less jealous of each other. There is, indeed, no body 
of men more free from antipathies than the Philadel- 
phia Bar. This is somewhat attributable to the ab- 

VOL. II. — 5 



58 THE FORUM. 

sence of attorneys and special pleaders^ wliOj in the 
mother country are apt to foment and prolong dis- 
putes, not only between clients, hut even among their 
barristers or counsel. 

There is another matter for which the entire Ameri- 
can Bar of the present day, bear an honorable com- 
parison with any other bar withm the scope of our 
information — we mean sobriety or temperance. We 
know them well, and we are not going too far when 
w^e say that there are, in a profession of five hundred 
lawyers in Philadelphia, (which, in this respect, justly 
represents the entire bar of the United States,) not 
five who are tainted with the vice of intemperance, or 
who, in more figurative and classic language, worship 
at the infernal shrine of Bacchus. 

In this regard, we have even improved upon the 
state of the bar some forty years ago. At that time 
the members of the bar scarcely exceeded one hundred 
— all men of education. Of these one hundred, perhaps 
five, (over whose names charity draws the veil,) rarely 
appeared in court without having apparently indulged 
in " potations pottle deep," at some other bar. In the 
interior of the State, until within the last twenty years, 
iit was still worse. Sobriety f^nd inebriety, in some 
counties were about equally divided — a sort of half- 
andrhalf mixture. But to their credit, be it said, it is 
not.soi^o?^, and has long ceased to be so. In a very 
general practice, we remember no recent instance in our 



ETHICS AND ETIQUETTE. gg 

own State, or the neighboring States, of such shameful 
'abandonment of moral and professional decorum. The 
time used to be, when topers excited sympathy— now 
they produce disgust. In former times, we have known 
many an inebriate who has had credit for great talents, 
upon a very slight capital, merely because it was won- 
derful that he should have an?/, when a temperate 
man, exhibiting greater ability, would not have been 
considered many removes from a fool — such was the 
admirable consistency of popular opinion. But, as we 
have said, the times are now changed, and we are 
changed with them. 

Temper. — " Counsel," says a learned judge,* in treat- 
ing of professional ethics, " should bear in mind the 
wearisomeness of a judge's office. How much he sees 
and hears in the course of a long session, to try his 
patience and temper. Respectful submission, — nay, 
even cheerful acquiescence, in a decision, when, as is 
most generally the case, no good result to his cause 
can grow from any other course, — is true wisdom, as 
well as propriety. An exception may be noted to the 
opinion of the bench as easily in an agreeable and 
respectful, as in a contemptuous and insulting mamier. 
The excitement of a trial of a cause, is no doubt often 
the reason and apology for apparent disresj^ect in man- 
ner and language ; but it is to be observed, that petu- 

" Judo'e Sharswood. 



go THE FORUM. 

lance, or conflicts with the bencli, which render the 
trial of causes disagreeable to all concerned, has more 
generally an injurious result upon the interest of chents. 
It is highly important that an advocate should be always 
equal. He should most carefully repress anything like 
excitabihty or irritability. When passion is allowed to 
prevail, the judgment is dethroned ; words are spoken, 
or things done, which the parties afterwards wish could 
be unsaid or undone. Equanimity and self-possession 
are quahties of unspeakable value." 

This is all perfectly sound and true, and the doctrine 
should be closely observed by the court, as well as by 
COUNSEL. Petulancy produces petulancy, and is not 
confined to, nor does it always originate with, the bar ; 
and, although the "wearisomeness" of the judge's office 
should be borne in mind, the vexations to which coun- 
sel are subjected, are also entitled to be remembered. 
Mutual forbearance produces mutual satisfaction, and 
adds grace to dignity. Respect for the court is neces- 
sary, but regard for counsel is not less to be inculcated ; 
and above all, a strict maintenance, in all circumstances, 
of the rights of a client. We are told that, when Home 
Tooke, in the course of one of his late trials, asserted that 
" there was not a single counsel who would venture to 
support Ms own conscientious conviction, against the 
opinion of a presiding judge, there was not at the time 
a single lawyer present, whose hollow bosom did not 
echo the sentence, and silently admit its truth." Thank 



ETHICS AND ETIQUETTE. g]^ 

heaven this is a reproach that has never rested^ and 
we trust never will rest, upon the American bar.* 

Business intercourse. — Passing to the direct profes- 
sional business intercourse between counsel, what rules 
shall be laid down ? Fnst, kindness to your juniors ; 
reverence towards your seniors, and* frankness and 
courtesy to all. Firmness and fidelity are perfectly 
reconcilable with courtesy and kindness. 

By all means, in aU circumstances, maintam your com- 
posure; if you lose that, you lose aU. If asked what is 
the most deskable attainment of a lawyer, we would say, 
— composure. A wealthy and venerable gentleman of 
this city, whose only son had recently been admitted to 



* In a work publishecl some tliirty-seven years ago, upon the decline of 
tlie Britisli bar, there are the following hints, which are worthy of onr 
regard : — " It cannot be denied, that there is a servile and crouching spirit 
in the bar towards the bench, inconsistent with the equality on which all 
gentlemen are placed, and with the liberal nature of their early education 
and attainments. It may perhaps be conceded, that a small portion of 
this subserviency may arise, among the younger barristers, from timidity 
or misapprehension, without attributing to it a baser motive, more espe- 
cially where political questions are involved, where the reputation or 
liberty of an individual is concerned, it is impossible to trust to them ; 
they win not speak out with decision and fearlessness ; for the conse- , 
quences of doing so stare them full in the face ; they therefore shrink 
from the performance of their duty, and rather abandon a man to a dun- 
geon than abandon their own hopes of success in their profession ; — not 
that the bench should not be treated with all becoming deference ; but 
there is a deference due to ourselves, and the cause of truth and justice." — 
Criticisms on tlie Bar, hy Amicus Curice. London, 1819. 



g2 THE FORUM. 

practice, called upon us, and, with a perfectly natural 
interest in the future advancement of his son, inquu-ed 
what course we would recommend in order to his success 
at the bar. " Your son," was the reply, " has had an 
excellent education in literature and in law ; all that 
he will require' in order to render his faculties and 
learning available, is composure." "Aye," said the 
anxious parent, "but how is that to be acquired?" 
'' That," we replied, " must depend upon himself, and 
upon time and circumstances. He must learn it, as 
Peter the Great learned to conquer, by being flogged 
and defeated over and over again ; deriving instruction 
from every overthrow. In short, he must let no man 
be master of his temper, but himself." 

But to pass from the Forum, to the etiquette of the 
office or chamber, of counsel. Here, wherever you affix 
your sign, you must observe the most rigid system ; 
your hours of business should be early and regular; 
your papers should be preserved in perfect order, 
indorsed and labelled ; and when not in use, deposited 
under their appropriate letter in your case. This costs 
but httle time, and saves much, to say notliing of its 
obviating an appearance of neghgence 'and confusion. 
Never retke to your bed without having arranged all 
your business for the next day. You will then sleep 
soundly, and awake cheerfullj^; and cheerfulness is 
important in carrying you through the cares and tur- 
moils that await you. The mind always works best 



ETHICS AND ETIQUETTE. gg 

when the heart is at ease. Keep your table always 
clear of surplus documents or papers. Any such unne- 
cessary accumulation springs from indolence, and pro- 
duces distraction. I know the practice in this respect, 
among members of the bar, varies greatly. Mr. Lewis's 
office was an Augean stable ; Mr. Rawle's was much bet- 
ter, but nothing to boast of; Mr. Ingraham's, although 
he was a man of system in most matters, was a sort of 
omnium gatherum, where you could find everything, and 
nothmg. On the contrary, Mr. J. R. Ingersoll's, Binney's, 
Sergeant's, and Chauncey's, were models of cleanliness, 
neatness, and system. We remember, in referring to 
to the difference of opinion and practice on this subject, 
a distinguished lawyer and senator of the United States, 
from Virginia, who called upon me at my office, in com- 
pany with Mr. Dallas. The office table had but few 
papers upon it, and he half jokingly observed, " Cer- 
tainly, judging from your table, and that of Mr. Dallas, 
you must, both of you, do but little business ; you 
should see my table; it is covered and piled with 
papers, half way to the ceihng." 

Punctuality . — It has been truly said, that the man 
who wants punctuality, wants everything. Keep your 
appointments as faithfully as possible. Avoid attend- 
ing before your appropriate time, for that is a loss to 
yourself; and avoid coming after, for that is a great 
loss to others. There are men who ncA^er keep a busi- 
ness appointment, except by chance, whereas chances 



(34 THE FORUM. 

or unforeseen contingencies should be tlie excuse for 
breaking tlieni. There are others again, that always 
take the half hour grace, as it is called, which may be 
grace, but it is not honesty ; for it compels the punc- 
tual to pay the debts of the negligent. Grace is in- 
tended for religion, and not mere worldly business ; in 
the latter it is improperly named — ^it should be called 
disgrace — ^and the man who adopts it will be doomed 
to the fate of the foolish yu'gin — ever coming too late, 
and being unprepared when he does come. Other 
h'.siness, is no excuse; indeed, the truly busy men 
rarely attempt such excuses. Want of punctuality is 
the vice of the indolent and indifferent, and in youth 
it is particularly to be deplored. We have never known 
a young man, who practised upon this principle, that 
ever acquired any professional distmction. Punctuahty 
is not only an important \Trtue in itself, but it is a 
voucher for all the other virtues. 

Clients. — As to consultation and communication with, 
and advice to chents, the mode of receiving and dismiss- 
ing them, these are matters so dependent upon cii'cum- 
stances, convenience, habits, and tastes, that no sug- 
gestions of ours could be serviceable, and certainly none 
can be required. Of course, men who confide to you 
thek business or then- character — their Hberty or lives 
— are entitled, in return, to a patient, generous, and 
grateful consideration. 

The last subject to which I shall advert, is ;profes- 



ETHICS AND ETIQUETTE. 55 

sional correspondence — perhaps one of tlie most im- 
portaht duties of coimsel, not only as relates to Ms 
clients, but Ms bretMen of the bar. A letter should 
never remain unanswered, if it be merely to acknow- 
ledge its receipt. Great inconvemence sometimes arises 
from an omission in tMs respect. The obligations of 
duty should be strengthened by a rigid habit, wMch 
every succeedmg day will render easier. There are 
some men who rarely write, and never answer letters ; 
and their indolence increasmg by indulgence, m time it 
will become a labor to write their own names. We 
waive all consideration of the neatness of the writing, 
folding, and sealing, wMch have formed a subject of 
special notice from high authority.* 

"When Lord Nelson, off Copenhagen, in reply to a 
letter from the governor, took particular care to fold and 
seal Ms letter, observing at the time that he must not 
appear to be in a hurry, by omitting any ceremonies ; 
he had a reason for the course he adopted. But promp- 
titude is more deskable than perfumed, bath, or gilt 
paper ; and the best impression for the seal is, Instanter. 

In these remarks, we have confined oui'selves to 
office business or intercourse ; but we may conclude 



* Judge Sliarswood's Professional Ethics, "A plain, legible liand- 
writin? everv man can ■m.-ite, tvIio takes pains. A good handwriting is a 
passport to the favor of clients, and to the good graces of judges, when 
papers come to be submitted to them." . 



gg THE FORUM. 

by saying, tliat courtesy should not Ibe confined to 
place, but should be manifested at all times, and to all 
persons,— even to a tribe almost as numerous as the 
plague of Egypt, and as great a curse; we refer to 
the applicants for subscription to all sorts of books, 
and every kind of phantastical experiments. Still, 
civility is cheap ; and we should therefore be civil, for 
fear we may fall into some error. We remember a 
case in point. Passing out of the office in great haste 
to attend court, a rather rough though intelligent-look- 
ing man, with a large book under his arm, stopped me 
on the steps, saying, "I want your signature." "What 
is it ?" was the hasty answer, supposing it to be a con- 
tribution, or subscription to some literary work. " Some 
music," said he, in a half quizzical way. " Well," was 
the answer, "walk along with me, — I can't go back, — • 
and as soon as I reach a convenient place, I will sub- 
scribe. Accordingly, reaching my grocer's, we walked 
in, and, upon opening the book to sign it, I found a check 
for a thousand dollar fee ! the signature required was 
simply to the receipt. This was music indeed, and of 
a most silver sound. Suppose I had treated this per- 
son coldly, though I should, of course, have received 
the money, I should have made an enemy, besides 
having the story reported at my expense. 

Having thus referred to the Etiquette of the Bar, 
strictly so called, allow us to bestow a passing notice 
upon the students of law, who at least require some 



ETHICS AND ETIQUETTE. Q'J 

attention. The young gentlemen who have assumed 
the to^'a candidus, that is to say, who have become can- 
didates for admission to this highly honorable profes- 
sion, should bear with them the constant recollection, 
that it requires more than the perusal of books in order 
to their becoming accomphshed practitioners. Civility 
and politeness should also be part of their learning. 
Engaged as they are in their studies, in the receiving 
room of their preceptor, they are necessarily brought 
into contact with the clients and members of the bar. 
They partake of some of the privileges of the counsel, and 
also share in some of his obligations. In this position 
they should be careful to manifest proper attention to 
those who call; to observe due ceremony towards all, and 
especially to the aged ; in short, never to forget that they 
are gentlemen. You can generally tell the preceptor 
by the pupil, and they mutually suffer for each other. 
In some of&ces, a visitor is furnished with a chair; 
kindly informed when his turn comes for admission to 
the sanctum of the ofS.ce, or, if the principal is absent, 
when he will return; thus contributing to. the com- 
fort of the client, and making him comparatively at 
home. In other offices, the students will be found 
loungiag on the settee or their chairs, with their feet 
above their heads ; never rising when they are ad- 
dressed; apparently offended at being interrupted, and 
returning short and surly answers to the most kind, 
respectful, and natural inquiries. This is not the worst 



gg THE FORUM. 

of it. The tree afterwards inclines to tlie bent of the 
twig. Their roughness grows upon them, and they are 
never able to acquire that gentleness and sympathetic 
kindness that should belong to the profession, and 
which was so invariably displayed by the late Charles 
Chauncey, who, in this respect, and indeed m all others, 
was an admirable model for imitation. His practice 
was among the largest at the bar ; and it was as much 
^attributable to liis cordial manner, as even to his emi- 
nent legal abilities. 

A churlish student never acquires a large practice ; 
while, on the contrary, blandness and courtesy of de- 
meanor enhst the affections of those with whom we are 
in habitual intercourse ; and if they do not always in- 
dicate great learning, they at least adorn that which 
we possess. If, therefore, your natural good feelings 
will not teach this lesson, let your future hopes become 
the inducement. 

Thus much for your reception of clients. As to the 
preceptor himself, there is Httle to be said. If, by his 
own example, he has not taught you to respect others, 
he has no right to complain, if he himself is not re- 
spected. 

Observe neatness, and system, and care with your 
books. After having finished with them, return them 
u.ninjured to their proper places. Keep the office and 
the papers confided to you, in order. Dehver the let- 
ters or documents of wliich you are the messengers, 



ETHICS AND ETIQUETTE. gQ 

23romptly — delay nothing. Tlie biographer of Burr,* 
states that his rule was, never to do to-day, what might 
be done to-morrow ; it is a much safer rule not to post- 
pone what can be done this moment, to the next. No 
one can command to-morrow ; and, certainly, in regard 
to important professional concerns ; " We know not 
what a day may bring forth." A fortune may be lost, 
— reputation may be lost, — life itself may be lost, — 
by the neglect of improving a single hour ; and what 
is the remorse, and where is the consolation for your 
own voluntary neglect, to which all these evils may be 
justly attributable. Ethics and etiquette combine in 
enjoining promptitude and attention. 

So much for the relations of Counsel and Client — 
some further notice is due to the relative position of 
Counsel and Court. 

Private interviews of counsel with the Court, in order 
to make private or exparte statements, or to endeavor 
to impress their views, is undoubtedly wrong, and tends 
to corrupt justice. So, to send, or authorise chents, to 
have such interviews. No gentleman will adopt this 
course ; it is unfaithfulness to the Court. But it is not 
unfrequently invited by the Court itself Judicial 
ethics must not be lost sight of. What client ever 



* It is also stated of Napoleon, that he at times allowed letters to remain 
tinopened for days ; and assigned as a reason, that time answered one 
third ; one third required no answer, and the remainder deserved no 
answer. 



70 THE FORUM. 

spoke to Judge Waslimgton or Judge Tilghman ? 
When judges read newspapers on the bencli, and con- 
sult with reporters during a trial, or confer with tip- 
staves, or advise parties, or receive private complaints 
against counsel, they invite to every evil, that is thus 
reprehended. The judge has no right to hear anything 
of a cause out of Court, and he can always prevent it; 
and if he do not prevent it, he encourages it. 

That counsel are bound to support the Court in its 
proper province, when it comes in conflict with the 
jury, no lawyer will deny. But counsel are equally 
bound to resist an encroachment by the court upon 
the proper province of the jury — fidelity to the client 
demands it. The judge may lay down the law cor- 
rectly, and the jury is bound to conform to it ; but no 
judge has the right to determine upon the character of 
the witnesses, the weight of the testimony, or the ap- 
phcation of the evidence submitted to the jury. If 
the court leave, as they are bound to leave, the facts 
to the jury, telling them, that if they find them in one 
way, theu' verdict should be for plaintiff — if another 
way, for defendant, the verdict ought to stand, un- 
less the law be erroneously laid down, or injustice 
manifestly done, of which, when convinced, a new 
trial may be granted, and all injustice avoided. If the 
judges broadly decide that the plaintiff or defendant 
cannot, in point of law, succeed upon the facts proved, 
they encroach as much upon the rights of the jury, as 



ETHICS AND ETIQUETTE. 7]_ 

the jury encroaches upon the Court, by finding a ver- 
dict against the law — both would be wrong. The lat- 
ter, however, might be remedied much easier than the 
former. 

In some cases the counsel may say, " he does not 
ask a verdict against the charge of the Court ;" but 
there are cases in which his course should be different. 
Suppose, according to his view, the charge should be 
grossly wrong — the amount in controversy large — ^he 
is concerned for defendant; if the verdict go against 
him, he is to carry up the case — give security for more 
than he is worth — toil through years of anxiety and 
delay — afterwards encounter difficulties as to the facts 
out of which the law arises, or as to the character of 
the witnesses from whom they are derived. Are these 
no reasons to forbid a time-serving acquiescence in the 
views of the Court; which he believes to be WTong ? 

Was this Erskine's doctrine in his conflict with BuUer? 

It is such deference as this, that has done more to 
break down the independence of the bar, than all 
other causes combined. 

As to the morality of pleading the Statute of Limi- 
tations, a word should be said, — this plea is authorised 
by law, and has the sanction of reason. The statute 
rests upon the probability of payment — death, destruc- 
tion of papers, loss of receipts, &c. The lawyer has 
the right to rest upon this presumption, furnished by 
his own science; nevertheless, if he actually knows 



72 



THE FORUM. 



that tlie note is due, unless there he some statute 
against conscience, he had better not undertake the 
case. A lawyer that would maintain such a defence, 
would file such a plea to avoid the payment of a debt 
known to be just. 

As to suits for fees — the Homan and English advo- 
cates, it has been said, consider it dishonorable to sue 
for fees. The Romans get their fees beforehand, in the 
shape of gifts, and therefore this honorable doctrme 
costs them nothing. The Enghsh barristers ' receive 
their fees from the attorney, before they enter upon 
their duties. 

Perhaps the better course is, to make the rich pay, 
and let the deserving and impoverished poor, the indi- 
gent widow and helpless orphan go free. Not only do 
not ask, but do not consent to receive fees from them. 
The Lord is their treasurer, and will pay their debts 
abundantly. 

As to contingent fees — Judge Sharswood says, that 
contingent fees, depending by agreement upon final 
success, are altogether indefensible, at least in all ordi- 
nary cases. And Judge Eogers has declared, that the 
practice that has obtained of contingent compensation, 
has been a subject of regret. 

Certainly, contingent fees are generally and properly 
condemned, but should not be imiversaTly condemned. 
The first men at this, or any other bar, have received 
them, but in peculiar circumstances. I remember an 



ETHICS AND ETIQUETTE. •j'g 

action brought for a valuable square of city property — 
the claim was surrounded by great difficulties, and 
liable to heavy expense. The claimants were destitute. 
Where was the moral or professional impropriety, in 
stipulating that in case of recovery, the counsel should 
receive ten or twenty per cent, of the land, as a re- 
quital for theu^ services and expenses ? What can be 
the objection, on the score of morals or professional 
honor, to this mode of securing a just compensation ? 
It is much more honorable, than to refuse to bring the 
suit because the client cannot pay a fee. 

There never was an eminent judge on the bench, 
who previously had been eminent at the bar in this 
country, that has not received contingent fees. In 
fact, fees are always more or less contingent ; first, it 
is a contingency sometimes whether you get them at 
all — then the amoimt must somewhat depend upon 
the extent of labor, and lastly upon its success. A 
lawyer rarely charges, and never receives, as much 
for failure as for success. The old practice of paying 
beforehand does not now exist, and when it did exist, it 
was not as advantageous to the client as the present 
system of professional compensation, and it was much 
more humihating to the counsel. 

How far it may be judicious to sue for a fee, may 
be questionable, and must depend upon circumstances. 
We do not consider it to be dishonorable to resort to 
the law to vindicate a meritorious and just claim — it 

VOL. II. — 6 



74 THE FOEUM. 

may not be eligible. It does not degrade the bar to 
maintain its legal rights. It is a strange doctrine, that 
the law will vindicate the rights and redress the wrongs 
of all but her own immediate family — her own children. 
This is to encourage wrong against them, and to make 
their suffering more than equal to their honors. Judges 
receiving stated salaries, and an elective judiciary, 
somewhat dependent upon the favor of the people, 
may very safely and complacently advocate this doc- 
trine; but it is pernicious in its influence upon the 
character and interests of the profession. 

A member of the bar may refuse, and often does 
refuse, to receive a fee when he is entitled to it ; that 
is charitable — ^it is honorable : but where is its charity 
or honor, when he is told that it is virtually optional 
with the client to pay him or not. The doctrine con- 
tended for unsuecessfuUt/ in the case of Mooney v. 
Lloyd, 5 Sergeant & Rawle, 412,=^ (though afterwards 
adopted,) is the true doctrine upon the subject. 

The last matter in this rambling essay that I beg 
leaA^e to present, before recurring to the series of pro- 
fessional portraits, is the present mode of administering 

* A suit cannot be sustained by a gentleman of tbe bar against bis 
client, for a compensation for services over and above the attorney's fee 
allowed by act of assembly. But if tbe client gives a note or bond for 
such compensation, an action lies thereon. Physicians may sue for their 
fees. Contra, Gray v. Brackenridge, 2 Pennsylvania Reports, 181. Foster 
V. Jack, 4 Watts, 337. Adams v. Stevens, 26 Wendell, 451. 



ETHICS AND ETIQUETTE. '75 

oatlis in courts of justice^ as impairing the sanctity of 
the obligation, and the solemnities of judicial tribunals. 
The very foundation of justice rests upon the oaths of 
witnesses and juries; yet hmo are they admuiistered? 
not, as in some of the courts of Great Britain, by the 
dignified oflacer of the Court, but by some blundering 
subordinate, who runs over the ceremony in a manner 
neither inteUigible to others nor himself. What sanctity 
can there be in such an obligation? The jury are 
huddled hurriedly together, especially in our criminal 
courts, like sheep in a pen — all is haste and confusion, 
and in the hurly burly, the great object of their pro- 
ceedings is lost sight of. A well-behaved dog should 
be tried with more ceremony. The tip-staves are 
bawling, children crying, the judge scolding, the dis- 
trict attorney grumbling, the clerk taking recognizances, 
the sheriff calling the jury, the defendant making his 
challenges, the crier calling the witnesses, the deputy 
is talking to the Court, the grand jury have just been 
into Court, and in the midst of all this uproar, oaths are 
administered. Now imagine such a scene as this, and 
then tell me, whether this is a Court of Justice — or a 
rout. It is in vain to say that these matters cannot be 
managed better — order is nature's first law. Why not 
at least make an effort to establish some system, that 
will combme comfort with propriety, and at the same 
time conduce to the promotion of justice ? 



CHAPTER IT. 

HENRY BALDWIN, L.L.D., 

ASSOCIATE JUSTICE OF SUPKEME COURT, UNITED STATES. 
BORN, 1777— DIED, APRIL, 1844. 

Judge Baldwin was the successor of Judge Wasli- 
ington, and received his appointment on tlie 6th day 
of January, 1830, from President Jackson, to whose 
cause he had always been devotedly attached. It was 
understood when Mr. Baldwin was invited to Wash- 
ington, after Jackson's election, that it was the inten- 
tion of the President to appomt him Secretarj^ of the 
Treasury. Jackson, however, with all his infirmities 
of temper, was a man of cool and discriminating judg- 
ment, and a moment's reflection convinced him, that 
from the views entertaiaed by Baldwin on the subject 
of the tariff, an uTeconcilable difference of policy 
would be the consequence of such an appointment. 
The result was that the Treasury was given to Samuel 
D. Ingham, whose notions were supposed to be more 



HENRY BALDWIN, L.L.D. fJ>J 

congenial with those of the Executive. Jackson, how- 
■ever, was not a man to overlook either his friends or 
his enemies, and he seized the first opportunity of 
requiting the fidelity of Baldwin, by appointing him, 
without sohcitation, the successor of the lamented 
Washington, upon the bench of the Supreme Court of 
the United States. 

Hemy Baldwin was born in New England, and be- 
came a gi^aduate of Yale. He removed to Pennsylvania 
in early life, read law with A. J. Dallas, and was admit- 
ted to the bar on the 6th of March, 1798. He was in 
fuU practice for many years in the city of Pittsburg, 
where his business was very extensive, and his cha- 
racter for rectitude, talents, and legal learning, distin- 
guished and imblemished. His industry was most 
untiring, and his zeal in behalf of his chents deserving 
of the highest praise. Even in CongTess, to which the 
suffrages of his feUow-citizens elevated him, and where 
he continued for years, he exhibited the same business 
tact, the same powerful grasp of his subject, and the 
same unremitted fidelity to his duties, for which he 
had always been renowned, giving a practical refuta- 
tion of the doctrine, that lawyers are never remarkable 
as statesmen, or distinguished in legislative or national 
councils. Our business with him, however, relates to his 
character as a Judge ; and assuredly no judge that ever 
sat upon the bench in this country was subjected to a 
severer test than that to which he was doomed. 



78 THE FORUM. 

He was the successor, as has heen said, of Bush- 
rod Washington, who had held his post for thirty 
years, with the admiration and approval of all who knew 
him. Any man to succeed Mm, without thorough 
competency, would have suffered so much by the 
comparison, or contrast, as to have been utterly de- 
stroyed. 

Judge Washington, though a most unostentatious 
man, always paid due observance to those forms which 
appertained to his judicial office, and which had received 
the sanction of centuries. The city of Trenton belonged 
to the third district; and there the practice had always 
prevailed, of the Marshal and his attendants, with the 
appropriate symbols of their office, receiving the Circuit 
Judge upon his arrival to open the court, in order to 
escort him to liis lodgings, and thence to the Court. 
After the death of Judge Washington, his successor, 
Judge Baldwin, was thus received and attended upon to 
his lodgings, where he was waited for until he Avas in 
readiness for Court. Upon coming out, instead of ap- 
pearing to appreciate the ceremony, he turned face- 
tiously, and with apparently great simplicity, to the 
assemblage, and exclaimed, in seeming surprise — "Why 
what's the matter, boys — what are you doing with all 
these sticks ?" This, of course, was the death of this 
time-honored custom. 

The judicial manners of Judge Baldwin were cer- 
tainly not equal to those of his predecessor. This could 



HENRY BALDWIN, L.L.D. yg 

scarcely be considered a reproacli, for certainly, in that 
respect, Washington had no rival ; hut the amiahility, 
kindness, and generosity which Judge Baldwin always 
displayed, contributed very much to lessen the dis- 
parity ; and the profoundness of his legal learning, and 
his indefatigable devotion to his duties, were such as in 
a measure to compensate the public for the bereavement 
they had sustained. A kinder and more conciliating 
judge, and one who had stronger sympathies for the bar, 
or tenderer consideration for its youthful aspkants, 
rarely, if ever, graced any bench. Towards the close of 
his life, the severity of his studies, and some unfortunate 
speculations, by which he had become embarrassed, 
materially affected his physical health, through which 
his temper was rendered somewhat more irritable, the 
equanimity of his mind disturbed, and the. serenity of 
feehngs temporarily overcast. Few men, however, 
under similar annoyances or afflictions, would have 
manifested equal philosophy or fortitude. 

As an advocate, prior to his appointment to the bench, 
though prominent in his own district, he was but httle 
known, except by reputation, in the Eastern District of 
the State. He had, however, upon several occasions 
been engaged in important cases in this city, and in the 
language of John Sergeant, (who was generally engaged 
with him,) it might be truly said, " He was a powerful 
man, and never struck a blow without leaving his mark." 

In the year 1844, after lingermg for some months, 



80 THE FORUM. 

and with very little hope entertained of his recovery, 
he passed to that "bourne whence no traveller returns." 

Few men during his time were more identified with 
the history or interests of Ms State. Few men to great 
learning united greater simphcity of demeanor; and few 
men, as citizens, lawyers, or judges, were more highly ap- 
preciated while Hving, or more deeply deplored in death. 

Judge Baldwin was a man of sturdy frame, some 
five feet ten inches high, dark complexion, round and 
agreeable face, indifferent but not careless in his dress, 
and of the most open frankness, familiarity, and cordi- 
ahty of feehngs. He was not, perhaps, calculated to 
shine in the circles of fashionable life, although his 
manners were exemplary, but he was calculated to 
shine in those higher spheres in which, mere fashion- 
able life, never dared to show itself. He was a great 
man among great men, and among the humble he was 
the humblest. Content with the riches of his own 
resources, and the permanency of his own fame, he had 
no occasion to envy others ; and instructed by his own 
difficulties, in the obstacles to advancement, he looked 
with commiseration and charity upon all those who had 
attempted it in vain. 

He had been brought up in a rough school, but there 
was still much unction in his manners ', it could hardly 
be otherwise, from his naturally amiable feehngs. That 
is a merit which education rarely gives, and still more 
rarely takes away. He had been poor, rich, and poor 



HENRY BALDWIN, L.L.D. g;^ 

again, and from all these conditions had derived im- 
'provement. He was disposed to be indolent, but be- 
came, by persevering habit, a man of untiring industry. 
He was unhappily, like Lewis, addicted to the vice of 
smoking excessively — a great fault in a lawyer, and 
much greater in a judge ; and there is but little doubt, 
that although it might at times have been matter of 
enjoyment, at others it subjected him to considerable 
annoyance, and probably eventually led to his death. 

These views perhaps require explanation : — a con- 
firmed smoker or opium eater becomes nervously irri- 
table, when deprived of his indulgence. Of course, a 
judge cannot smoke on the bench, and he is rendered 
uneasy, inattentive, and sometimes petulant. In this 
respect chewers and snuff-takers have a great advan- 
tage, as any one will perceive who notices the relative 
effects of tobacco, with regard to those diiferent uses, 
upon the judiciary. The man who can avoid them all, 
may felicitate himself (and congratulate others,) in 
having escaped these physical evils, and their conse- 
quent pernicious influence upon the composure and 
equilibrium of the mental structure. 

Judge BaldwiQ was a man of great sensibility, and 
was particularly alive to his judicial character. Perhaps 
he had too great a desire for the approval of others, in 
which he differed widely from Judge Washington, 
who seemed utterly dependent upon his own scrupu- 
lous convictions of right; who would not have flat- 



82 THE FORUM. 

tered " NeiDtime for his trident, nor Jove for Ms power 
to thunder ;" and to whom, the syi^en voice of popular 
favor was matter of total indifference. If he ever desii^ed 
popularity, m the language of Lord INIansfield, it was 
" that popularity that folloivs, not that which leadsr 

It has been said, that during the last four years of 
liis judicial hfe, the health of Judge Baldwin was ma- 
terially impaired, which was somewhat produced by 
habitual smoking, but much more by personal trou- 
bles and anxieties. Even the mind, through the me- 
dium of a disordered nervous system, for a short time 
seemed to lose its balance, and to share in his physical 
infirmity. But it was so ordered by the beneficent Cre- 
ator of earth and heaven, that with this tendency, his 
temporal career was not so prolonged as to substitute a 
drivelling state of mental chaos, for the glories which 
he had garnered up, and the spotless temple which he 
had erected by his honesty, industry, and intellectual 
wealth. 

Heaven forbid that his frailties should be " dragged 
from then- dread abode," to be exhibited unnecessarily 
to a censorious world. But to show how jealous he 
was of his judicial reputation, even when his faculties 
were under a temporary shadow, but a short time before 
his death, at the close of the day's session, taking a 
member of the bar by the arm, he requested him to 
go with him to his chambers. While there. Judge 
Baldwin manifesting great nervous agitation, turned 



HENRY BALDWIN, L.L.D. 33 

to his companion with a very anxious countenance, 
and said, "I think I have heard you observe, that 
there is scarcely any occurrence or incident of life, of 
which Shakspeare in the universahty of his genius, has 
not expressed clearer and more satisfactory views, than 
can be found in any, or in all other writers combined." 
"Why," said his friend, "the whole world s&js that, and 
you must not give me as its author." "Well, then," re- 
joined the judge, " can you point me to any passage of 
the poet, in which he expresses an opinion of the case 
which I shall now state ? A dissenting opinion was 
delivered by one of the judges of the Supreme Court 
at Washington, which was erroneously reported in re- 
gard to its principles, ui the ensuing volume of United 
• States Reports. The judge spoke to the reporter, and 
explaiaed to him the errors, which the reporter pro- 
mised to correct in his subsequent Reports; when, 
strange as it may seem, the next volume, instead of 
containing the promised correction, reasserted the cor- 
rectness of the opinion as originally reported. Now, 
sir," said the Judge, his eye lighted up with indigna- 
tion, " can you furnish me, from Shakspeare, with any 
expression or sentiment reprobating conduct so unwor- 
thy as that ?" The person to whom he thus addressed 
himself knowing something of the difference between the 
judge and the reporter, and desirous of avoiding further 
colloquy, rephed, " Certainly, I can show you passages 
that condemn the whole series of The U. S. Reports." 



84- THE FORUM. 

The Judge was delighted — handing down from his 
shelves .a copy of Shakspeare, he was furnished with 
certain extracts, that without much straining might he 
rendered applicable to the subject in question. The 
result waSj that the very next day he wrote an elabo- 
rate letter to Chief Justice Marshall, recounting all 
the circumstances before related, and concluding with 
a quotation of an entii^e scene, taken from the immor- 
tal bard. 

Upon another occasion, which was dm'ing his more 
palmy days, after he had delivered a very zealous and 
decided opinion in a case of great importance, in the 
Ckcuit Court, a verdict passed immediately for the 
plamtiff; whereupon a motion for a new trial was 
entered, and reasons were filed. The reasons being 
drawn by the defendant's counsel, under considerable 
excitement, were expressed in language not, perhaps, 
of the most measured respect — " The Cornet erred in 
statement of facts." " The Court erred in principles 
of law, and the Court further erred in applying the 
law to the facts." 

The Judge received the motion and reasons, and at 
the time said nothing ; but about a week after, and 
just before the case came up for argument, taking the 
reasons in his hand, he approached the counsel, and 
exhibiting to him the papers with the most winning 
kindness, said, " Do you think, my young friend, that 
I deserve all this ?" Of coui'se, good feeling by that 



HENRY BALDWIN, L. L. D. g5 

time had taken the place of irritation — the paper was 
withdrawn and another substituted of the self-same, 
name, but of a softer nature. 

It must have been a matter of great felicity to Judge 
Baldwin that, until a year or two before his death, dur- 
ing the entire term of his office, he enjoyed the judicial 
companionship of Judge Hopkinson — than whom no one 
could have been a more pleasant or valuable associate. 

Judge Hopkinson was born in Philadelphia in 1770, 
and died on the 15 th of January, 1842, studied law 
with William Rawle, and was admitted to practice in 
the Supreme Court on 4th of May, 1791. 

Judge Hopkinson was a man of about the middle 
height, very slender in his person, and wore his hair 
tied, in the fashion of the times. Towards the close of his 
life, he was slightly bald. His features were good, and 
had great play and intelligence. His eyes, which were 
gray and small, were very expressive of intellect, and 
brightened and saddened in sympathy with his thoughts. 
His voice was clear, but neither powerful nor melodi- 
ous, and the flash of occasional pathos was too often 
interrupted by striking a vein of merriment or wit. 
He was an acute, but not a profound lawyer j but still, 
Ms accomplishments, and his excellent temper and man- 
ner, and his sterling honesty rendered him a most agree- 
able, excellent, and upright judge. As an advocate, he 
was unsurpassed, and in social and convivial life une- 
qualled. He possessed one quality, which is always 



gg THE FORUM. 

observable in orators when elevated'to the bench — he 
invariably kept his eye fixed upon the counsel who 
addressed the court ; in other words, he appeared to 
be alive to his business. He was what may be called 
a great purist in language, and never undervalued 
forensic embellishments. His own language was sim- 
ple, but choice, and yet he was sometimes negligent or 
common place. He would run words unnecessarily toge- 
ther, and destroy their beauty and dignity. Ain't and 
won't, and can't and don't, &c., were sometimes embo- 
died by him into the most sublime sentences. These 
were small matters, but small matters blur and impair 
great ones. He had no envy — no meanness about him, 
and he appeared to rejoice as much in the great speech 
of another, as if it had been his oivn. 

We have said he was remarkable for his repartee — 
this arose from his extraordinary quickness of appre- 
hension and comparison, and yet, strange to say, the 
mother wit and spontaneous sallies of Sampson Levy, 
were quite as distinguished for their pungency and fire, 
and even more agreeable for their matchless good hu- 
mor. We have heard it said, that upon this cue, no 
man ever entered into a conflict with Levy, without 
coming out of it secokd best. If Levy had not always 
the first blow, he had certainly always the last. Be- 
sides, his unrivalled reputation for success, was, itself, 
like the king's name, " a tower of strength." 

We have remarked that Hopkinson had no superior 



HENRY BALDWIN, L.L.D. gj 

as an advocate ; and we submit, tliat there are but few 
efforts of oratory that embrace more simplicity, beauty, 
strength and pathos, than are displayed in the exordium 
to his opening speech on the trial of Justice Chase 
before the Senate of the United States, in 1804. We 
quote it, because it is an indication of his usual ex- 
quisite style early in his professional career, and which 
adhered to him, to the last : — 



'• Mr. President, — We cannot remind you and tliis honorable 
Court, as our opponents have so frequently done, that we address 
you in behalf of the majesty of the people — we appear for an an- 
cient and infirm man, whose better days have been worn out in the 
service of that country which now degrades him, and who has 
nothing to promise you for an honorable acquittal, but the appro- 
bation of your own consciences. We are happy, however, to concur 
with the honorable managers in one point — I mean the importance 
they are disposed to give to this cause. In every relation and 
aspect in which it can be viewed, it is indeed of infinite import- 
ance. It is important to the respondent to the full amount of his 
good name and reputation, and of that little portion of happiness 
the small residue of his life may afford. It is important to you, 
senators and judges, inasmuch as you value the judgment which 
posterity shall pass upon the proceedings of this day ; it is import- 
ant to our country, as she estimates her character for sound, digni- 
fied, and impartial justice, in the eyes of a judging world. The 
little, busy vortex, that plays immediately round the scene of action, 
consider this proceeding merely as the trial of Judge. Chase, and 
gaze upon him, as the only person interested in the result. This 
is a false and imperfect view of the case. It is not the trial of 
Judo-e Chase alone — it is a trial between him and his country, and 



go THE FORUM. 

that country is as dearly interested as the Judge can be, in a fair 
and impartial investigation of the case, and in a just and honest 
decision of it. There is yet another dread tribunal to which we 
should not be inattentive — we should look to it with solemn im- 
pressions of respect — it is posterity, the race of men that will 
come after us ; when all the false glare and false importance of the 
times shall pass away; when things shall settle down in a state of 
pkcid tranquillity, and lose that bustling motion which deceives 
with false appearance ; when you, most honorable senators, who sit 
here to judge, as well as the defendant who sits to be judged, 
shall alike rest in the silence of the tomb ; then comes the faithful, 
scrutinizing historian, who, without fear or favor will record the 
transaction 3 then comes a final and impartial posterity, who, with- 
out regard to persons or to dignities, will decide upon your deci- 
sion ; then, I trust, the high honor and integrity of this Court will 
stand recorded in the pure language of deserved praise, and this 
day will be remembered in the annals of our land as honorable to 
the respondent, to his judges, and to the justice of our country." 

We are not permitted to indulge in farther quotations, 
but must hasten to the close of our assumed task. 

Judge Baldwin died 21st of April, 1844. His term 
of office, particularly while holding this circuit, must 
have heen a most gratifying one. With Hopkinson as an 
associate — a man of the most agreeable conversational 
powers — great learning and great wit — there could 
scarcely have been a better adapted judicial companion- 
ship. They manifested always the greatest regard for 
each other. They bore no mental resemblance, and ac- 
cording to Dr. Johnson's notion, this possibly contributed 



HENRY BALDWIN, L.L.D. gg 

to their harmony. Baldwin was all labor, and Hopkin- 
son all genius. Their opposite qualities were both im- 
proved by being united. Toil was to some extent light- 
ened of its load, and fancy deprived of her superfluous 
plumage. Thus they passed along, "dwelling in 
unity," and after a joint judicial tenure of upward of 
"twelve years, within about a year of each other, they 
rested from their labors — leaving to the nation the 
benefits of their learning, their vhrtues, and their ex- 
ample. They were about the same age, and had both 
been eminent lawyers at the bar. 

Baldwin was unsurpassed for depth of research, and 
Hopkinson had but few rivals as an advocate. From 
the age of thirty until he entered upon poHtical life 
in 1835, he was concerned in almost every case of 
interest. He had not the strength of Lewis or of 
IngersoU, but he was a most fascinating and successful 
speaker. His merit consisted more in the beauty and 
fitness of his thoughts than in the choice of his lan- 
guage — though not unfrequently all were united. It 
is not easy to conceive of a more simple and touching 
exordium than that with which he introduced his speech 
before the Senate of the United States, in the case of 
Judge Chase, which we have already noticed, as a fair 
specimen of his general style. 

In taking leave of Justice Baldwin and Hopkinson, 
we may be pardoned for introducing — as a connecting 
link in this series — a brief notice of Archibald Ran- 

VOL. II. — 7 



9Q THE FORUM. 

dall, who succeeded Judge Hopkinson in March, 1842, 
and who in his turn was succeeded by Judge Kane, in 

1846 :— 

"Judge Randall was admitted to tlie bar in April, 1818, Having 
studied law in tlie office of Messrs. Peters and Delany, who were 
extensively engaged in the admiralty and other practice in the 
District Court of the United States for this district. He was a 
laborious and diligent practitioner, and was remarkable for his 
sound common sense, his amiable and unassuming deportment, and 
his uniform courtesy to his brother members of the bar. In Feb- 
ruary, 1834, he was appointed an Associate Judge of the Court of 
Common Pleas by Grovernor Wolf, and on the death of Judge Hop- 
kinson, he was in March, 1842, made the Judge of the District 
Court of the United States for the Eastern District of Pennsyl- 
vania. 

" In both stations he displayed some of the best qualities of an 
American Judge. His temper was cool, his judgment clear and 
calm, and his decisions have given general satisfaction, and have 
stood, with very few exceptions, the test of ulterior judicial scru- 
tiny. The Bankrupt Act, and informations for breaches of the 
revenue laws brought before him a large amount of business, and 
many intricate and difficult questions, which were all satisfactorily 
disposed of. 

" For the last two years the death of Judge Baldwin devolved 
upon him exclusively the duties of Circuit Judge for this District, 
and too much praise cannot be awarded to him for his faithful per- 
formance of them. It may be said that they were the immediate 
cause of his death, for he was in court during the preceding, 
week, and had but recently finished the hearing of the motion 
for a new trial in the case of the crew of the Cactus. He died 
with harness on his back." 



CHAPTER III. 

ROBERT COOPER GRIER, L.L.D., 

JUSTICE OF THE SUPREME COURT OF THE UNITED STATES. 
BORN, MARCH, 1794— APPOINTED, AUGUST, 1846. 

Having thus passed tlirough the monuments of the 
venerable dead, "whose good is oft interred with 
their bones," and drawn from their memory, profit- 
able instruction, it is proper that some notice should 
be taken of the living, who occupy those places which 
the learning, wisdom, and virtue of the departed 
have consecrated to an endless fame. Of the dead 
we may freely speak, and I rejoice to say, proudly 
speak. Their relatives — their children and then chil- 
dren's children — need never be ashamed of thek lineage, 
but should feel bound in its contemplation, to pursue 
those footmarks, which their ancestors have left to 
direct them in their worldly career, and encourage 
them in their heavenly hopes. 



g2 THE FORUM. 

With regard to the livmg, our task is more de- 
licate, more difficult, and more dangerous. Their 
worldly destiny is not yet accomplished. They give 
bright forebodings, it is true, but Hfe is a checkered 
and changeful scene, and hopes apparently well-found- 
ed, often prove delusive and fallacious. Our enjoyment 
of the present is prudently mingled with our fears of 
the future. History, alas, has taught us 

" How many mighty and majestic minds, 
In after life, demolisli the proud structure 
s Elaborated and adorned by youth 

With gems of science — trophies of the war, 
Garlands of love, and spoils of great ambition — 
Death is the crown or crucifix of fame." 

A distinguished and faitliful biographer* has excused 
himself from writing the lives of the recent dead, froni 
the fear of hurting the feelings of relations and friends. 
If this is to be deprecated, who shall venture to notice 
the living, without serious apprehension of giving pain 
and provoking resentment. And yet it appears to us 
that a public hfe should at least endure without shrink- 
ing, a liberal pubhc scrutiny ; and it also would seem 
that the hving are more appropriate objects of exami- 
nation than the dead. To speak justly of the living 
or the departed, is equally a tribute due to posterity. 
Obhvion or contempt is the worst reproach to which a 
high pubhc functionary can be subjected. 

* Lord Campbell. 



EGBERT COOPER GRIER, L.L.D. 93 

We cannot, therefore, consistently with these views 
and our proposed plan, altogether omit, the notice of at 
least some of those with whom we are in daily inter- 
course. We may not say all that they deserve — all that 
we incline to — nor speak of all who deserve to be spoken 
of; hut what is said, shall he truly said. This is not 
an eulogy but a history ; and it would impart no cha- 
racter to others, and, indeed, possess none of its own, if 
it either dealt in unmeasured and unmerited praise, or 
descended, under the garb of candor and sincerity, to 
obloquy and abuse. 

There is not a man of whom we speak, towards 
whom we harbor any resentment, or from whom we 
expect any favor, or of whom we acknowledge any 
fear; where, then, is the excuse for reproach, or the 
inducement for flattery. Still, we confess it is more 
agreeable to a generous mind to approve than to 
condemn. 

It cannot be expected that the limited dimensions 
of our canvas will allow us to group together, much 
less exhibit individually, all who are deserving of 
being portrayed in this picture, but the instances 
selected, in merchants' phrase, may be considered as 
samples of the respective classes of which the Bench 
and the Bar are at present composed. There is an 
isolated portion of the profession, so small as scarcely 
to form a class, to which we do not feel called upon 
to refer. They deserve no praise, and require no 



94 THE FORIJM. 

censiu'e. If tlie twelve disciples contained a Judas, 
it is liardly to be expected that among five hundred 
lawyers, there should be no derelicts. If the Gospel 
is not entirely free from human frailty, the disciples of 
a mere worldly profession can hardly challenge an ex- 
emption. With this explanation we shall proceed in 
our allotted course. 

Judge Grier was born on the 5th of March, 1794, 
in Cumberland County, Pennsylvania, where his father, 
the Rev. Isaac Grier, at that time resided. The mother 
of Judge Grier was the daughter of the Hev. Robert 
Cooper, of the same county. Both the father and the 
maternal grandfather were members of the Presby- 
terian Church. In the year of Judge Grier's bu'th, his 
father removed to Lycoming County, on the West 
Branch of the Susquehanna river, where he derived 
his support from a grammar school which he taught, 
and the proceeds of his farm. He was a superior 
Greek and Latin scholar, and a faithful and exemplary 
pastor. His son at a very early period began to learn 
Latin under his instructions, and at twelve years of 
age had mastered the usual preliminary course of Latin 
and Greek, as taught at that time. In 1811, he enter- 
ed the junior class of Dickenson College, half advanced. 
In the meantime, in 1806, his father had removed to 
Northumberland, where he took charge of an academy, 
and also served three congregations in the capacity of 
clergyman, but stiU mainly depended for the support 



ROBERT COOPER GRIER, L.L.D. 95 

of his familj, upon the revenue of his farm and his 
teaching. 

While at Dickenson College, the aptitude of Robert 
C. Grier, in the classics, had placed him far in advance 
of aU competitors in that branch. Dr. Cooper, (for- 
merly Judge Cooper,) was the Professor of Chemistry, 
and from him Mr. Grier, who was a great favorite, de- 
rived most valuable instruction in that department of 
science. 

Mr. Grier graduated in 1812, but continued m the 
College as a teacher until 1813, when he retm^ned to 
Northumberland, to assist his father at what, com- 
mencing as an academy, had then become a college. 

In 1815, beloved and revered by all, his father died — 
and the acquirements of the son led to his appointment 
as principal of the coUege, though at that time he was 
scarcely twenty years of age. In this situation he 
graduated the classes, delivered lectures upon chemis- 
try, taught astronomy, mathematics, Greek and Latm, 
and studied law at the same time. No doubt the very 
variety of his employments contributed to reheve each 
of them, and thereby to facilitate the acquisition of aU. 
His law instructor was Charles Hall, Esq., of Sun- 
bury, through whom he was admitted to the bar in 1817, 
and commenced practice the same year. 

His professional career commenced at Bloomsburg, 
Columbia County, Pennsylvania, where he did not re- 
mam lono^, for in the year 1818 he had moved to Dan- 



96 THE FORUM. 

ville. Here his practice became extensive, and so 
continued until lie was appointed by Governor Wolf 
President Judge of the District Court of Alleghany. 
This appointment was on the 4th of May, 1838. 

In October of the same year he removed to Pittsburg, 
and resided in Alleghany City, till September, 1848, 
when he came to Philadelpliia — he having been on the 
4th of August, 1846, nominated and confirmed one of 
the Justices of the Supreme Court of the United States, 
in place of Justice Baldwin, deceased. 

Since the elevation of Judge Grier to the bench of 
the Supreme Court, his course has been marked by 
great uprightness and ability. At Washington he has 
not otAj j^rojioiinced, but gained, golden opinions. He 
is no doubt a sound lawyer and a competent general 
scholar. As to his native energy and capacity, no one 
can entertain a doubt. 

In addition to those quahfications, he is possessed of 
that, without which, all of them, would be nothing — a 
heart of kind and generous feeling. His honesty re- 
quires no eulogy. To possess it, is not so great a 
virtue in a judge, as it is a vice to want it. A dis- 
honest judge could not breathe the atmosphere of 
the Supreme Court of the United States. Such an 
one has never been heard of there — and we trust never 
may be. 

As Judge Baldwin enjoyed the happiness of a long 
companionship with Hopkinson as an associate, so it 



EGBERT COOPER GRIER, L.L.D. 97 

was the good fortune of Judge Grier to be connected 
with Mr. Kane (as the District Judge for the Pennsyl- 
vania Circuit). They entered upon their respective 
offices within a month of each other, and have ever 
since largely contributed to mutual assistance and 
relief. 

John Kintzing Kane, was a graduate of Yale College, 
and afterwards entered the office of the late Judge 
Hopkinson, of whom he was a favorite student. He 
was admitted to practice ia the year 1817 — became 
in January, 1845, Attorney General of Pennsylvania — 
and was appointed by President Polk, in the year 
1846, upon the death of Judge HandaU, District Judge 
of the United States — a situation which he still holds 
— and well deserves to hold. 

For the competency of his predecessors in office, 
with the exception of Judge Hopkinson and Judge 
Randall, we must mainly rely upon tradition — ^we 
literally know but little else. There are no Reports of 
the Court prior to the time of Judge Peters. We dis- 
parage none of those judicial functionaries, however, 
when we say, that in fitness for their posts, no one of 
them was superior to the present incumbent. Mild, 
calm, patient, systematic, industrious, and just, we 
doubt much whether he has had any superior among 
the district judges of the country. He is not only 
a competent judge, but a ripe scholar and a fin- 
ished gentleman ; and whatever graces he may as- 



98 . THE FORUM. 

sume,* wliicli, in our view, sliould be rather imitated 
than condemned, he at least takes no airs. He is a 
faithful man — a- religious man — a firm man — and has 
always been pure in his life and his office. What 
more is required to be said of any public servant ? 

We have been present at the trial of many cases 
before him, and deeply interested in some of them, 
and we are bound in justice to say, that a more pains- 
taking, courteous, and altogether amiable Judge, we 
never desire to see. It is impossible that a judge 
should please everybody, and do justice to the law and 
himself. Counsel and parties sometimes convert legal 
into personal differences. This is very absurd. A 
judge cannot decide both ways — and if he listen to 
both sides, and give the case the best lights of his 
conscience and judgment, he performs his duty, and no 
one has either right or reason to complain. 

Judge Kane is about sixty-one years of age. As a 
young man, as we remember him, (being his cotem- 
porary), his appearance was eminently handsome; his 
person was slender, and of the middle height — he had 
fine eyes — aquiHne nose — large mouth, and excellent 
teeth — added to which he possesses unexceptionable 
delicacy and refinement of manners. In early life he 
gave high professional promise, which in after years 

* The judge is very particular in his costume, and exacts a most rigid 
observance of neatness and order from all concerned in the progress of a 
trial; if this be an error, it is, as Judge M'Keau says, "on the right side." 



ROBERT COOPER GRIER, L.L.D. 99 

he amply fulfilled. He lias always been a man of a 
strict sense of honor, and we need not say, of un- 
doubted probity, and unstained fidehty in the discharge 
of his arduous and diversified official duties. But let 
us return to the Circuit Judge. 

Judge Grier is now in the sixty-thhd year of his 
age, and in full health and vigor, both of body and 
mind. Notwithstanding some pretty severe profes- 
sional encounters, arising from sudden, and natural ex- 
citement, we have kind feelings towards him, and those 
feelings naturally lead to a favorable estimate of his 
judicial character. It is always more agreeable to 
praise than to censure; but truth is preferable to 
either, and we must therefore be allowed to say, that, 
whatever may be the powers exhibited by Judge Grier, 
while sitting in banc, neither he nor any other man can 
abide the test of a comparison at Nisi Prius, with Judge 
Washington. No man can come up to the expectation 
of the community, while Judge Washington remains in 
the memory. The judicial glory of the Third Judicial 
District of the United States, is buried in his grave. 
It is no disparagement to any man to say that he is 
lower than one who had no equal, during tliii'ty years, 
as a Nisi Prius judge. 

Mr. Justice Grier, however, is a man of more gene- 
ral and practical knowledge than Judge Washington. 
His classical attainments are higher and more culti- 
vated. The grasp of his mind is stronger and more 



^QQ THEFOEUM. 

comiDrehensive; but for experience and perspicuity, — 
patience and dignity, — and above all, disinterestedness, 
no judge that has preceded or followed Judge Washing- 
ton, ever equalled him. 

Judge Grier is a man of large proportions ; upwards 
of six feet high ; apparently of great muscular power, 
and u'on constitution, and somewhat corpulent; of san- 
guine temperament; ruddy complexion, and a most 
agreeable and good-natured face. Notwithstanding an 
occasional roughness of manner, and harshness of voice, 
no one can fail to perceive that this is the result of 
the situations into which, in early life, he was thrown, 
rather than of any want of gentleness and kindness of 
nature. If he happen to give the slightest offence, he 
atones for it so soon, and so willingly, that he secures 
a friend, where some men would make an enemy. 
It must further be said, in justice to Judge Grier, that 
during his exercise of the duties of a federal judge, he 
has encountered extraordinary difficulties arising from 
national legislation, on. the subject of slavery. These 
difficulties somewhat arise from his being a Pennsyl- 
vanian by birth. Our citizens look with less favorable 
eyes upon one who was born among them, when even 
the ofGicial post imperatively cominU him, to run coun- 
ter to the liberal policy of the State. 

Judge 'Baldwin, who was not exposed to the annoy- 
ance of the Fugitive Slave Law, or the excitement of 
the Missouri question, or the odious Nebraska agita- 



ROBERT COOPER GRIER, L.L.D. ]^();[ 

tions, and the revolting questions to which they have 
all given rise, was a much sterner and severer judge 
in his adjudications, in every matter connected with 
the conflict between North and South, than Judge 
Grier. He was born in Connecticut; bred, and che- 
rished, and honored in Pennsylvania; and yet, he 
seemed to rejoice in an opportunity of manifesting his 
loyalty to southern policy. 

He not only carried out the law, but he appeared to 
do it con amove, which can hardly be said of any deci- 
sion of Judge Grier, who, whether right or wrong, 
always appears to be swayed by a desu-e strictly to 
perform his duty, however he may sympathize with 
the oppressed. 

We can conceive even of such a man, from a high sense 
of official obligation, maintaining the laws he is sworn 
to administer, with unflinching firmness ; but we cannot 
conceive, whatever may be his sense of duty, of his 
looking upon the sufferings and agonies of his fellow- 
creature, without reluctating in theu' contemplation. 

Laws may control mere judgments, but they cannot, 
or should not, change the hearts. In the harshest and 
severest decrees, mildness and sympathy are becoming. 
Justice may drop a tear into the wound she infUcts, 
without compromising her divine character. 



CHAPTER lY. 

JEREMIAH S. BLACK, L.L.D., 

CHIEF JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA. 
BORN, JUNE 10, 1810— APPOINTED, JAN. 1, 1851. 

The first Chief Justice, among the, judges elected, 
for the Supreme Court, was the Hon. Jeremiah S. 
Black. The distribution of honors under the law 
standing thus : — 

" The judges of the Supreme Court shall hold their offices for 
the term of fifteen years, if they shall so long behave themselves 
well, subject to the allotment hereinafter provided for, subsequent 
to the first election. * * * * 

" The first election shall take place at the general election of this 
Commonwealth. The- persons who shall then be elected judges of 
the Supreme Court, shall hold their offices as follows : one of them 
for three years, one for six years, one for nine years, one for twelve 
years, and one for fifteen years ; the turn of each to be decided by 
lot, by the said judges as soon after the election as convenient, and 



JEREMIAH S. BLACK, L.L.D. 103 

the result certified by them to the Grovernor, that the commissions 
may be issued in accordance thereto. The judge whose commis- 
sion shall first expire, shall be Chief Justice during his term, and 
thereafter each judge, whose commission shall first expire, shall be 
Chief Justice; and if two or more commissions shall expire on the 
same day, the judges holding them shall decide by lot, which shall 
be Chief Justice." 

Under this allotment, Judge Black drew tlie three 
years term, Judge Lewis six years, Judge Gibson 
nine years, Judge Lowry twelve years. Judge Coulter 
fifteen years. Judge Gibson and Judge Coulter dying, 
Judge Knox was appointed to the place of the former, 
and Judge Woodward to the place of the latter ; and 
were afterward confirmed by the voice of the people. 

Thus, on the first day of January, 1851, Jeremiah 
S. Black became Chief Justice, for three years, which 
was the entire length of his term of ofi&ce — ^he had 
the shortest term, but the highest post; and as he 
held the first place, he is entitled to be first consi- 
dered. 

He was born in Somerset County, State of Penn- 
sylvania, on the 10th day of June, 1810, and after a 
pretty thorough mathematical and classical education, 
for which he was perhaps as much indebted to his own 
youthful ambition and industry, as to the competency 
of his teachers, he quitted school, and adopted tempo- 
rarily the occupation of a farmer. 

Young Black was not only well versed in the Latin 



204 THE FORUM. 

and Greek classics, but lie was a devotee to English 
literature, and perhaps his appetite increased from the 
great difficulty of gratifying it. The hooks were very 
limited, and served to stimulate, rather than to satisfy 
his desires. From a glance into one or two of the 
dramas of Shakspeare, he had become fascinated with 
that author, and this gave rise to the following amusing 
anecdote, relating to that subject. After having been 
withdrawn from school, he was placed upon the farm. 
Poetry, however, rarely ploughs well, and never runs a 
straight furrow. When the boy should have been in 
the field, he was building castles in the air, and instead 
of reaping the grain, he was engaged in fancy's garden, 
plucking flowers. 

All his tendencies were towards reading, but without 
any special or peculiar end. At one time, his father 
being about to set off upon a visit to Philadelphia, 
inquired of his son, whether he could do anything for 
him ? " Yes," said he, " father, I wish you would bring 
me Shakspeare's plays.'" " Shakspeare's plays !" was 
the reply. "Why, Jerry, you have certainly had 
enough of plays, suppose I bring you some wokks." 

Shortly afterwards, at the age of seventeen, he 
became a student of law in the oflS.ce of Chauncey 
Forward, then member of Congress ; a brother of Wal- 
ter Forward, a man of great legal and political distinc- 
tion. The father of Chief Justice Black was a man 
of respectability and influence, and from the years 



JEREMIAH S. BLACK, L. L. D. ]^Q5 

1814 to 1818, was a member of the Legislature, and 
afterwards for many years an Associate Judge, and 
toward the close of liis life, and at the time of his 
death, a member of Congress. 

In the year 1831, when the subject of this memoir 
attained the age of twenty-one, he was admitted to 
practice, and speedily- — through the estimation in 
which his father was held by the entire county — he 
was launched into an unusual run of business for a 
young man, which was secured and rapidly increased, 
by his attention and perseverance in the performance 
of his professional duties. Such was the reputation 
he acquired in a few years for fidelity and ability, 
that in April, 1842, he was appointed, by Governor 
Shunk, President Judge of the Sixteenth District, 
composed at that time of Franklin, Bedford, and 
Somerset counties, to which Blair and Fulton were 
afterwards added, when those counties became organ- 
ized. 

This was an extensive circuit, and required great 
energy, indefatigability, and promptness in the presid- 
ing judge ; and no one can deny that the obligations 
imposed upon him, were cheerfully and satisfactorily 
discharged. 

In this post, Judge Black continued until January 
1st, 1851, when he was nominated and elected, as 
already stated, one of the Judges of the Supreme 
Court of Pennsylvania, and became Chief Justice by 

VOL. II. — 8 



2Q6 THE FORUM. 

the mode of allotment appointed by Legislature, for 
the term of three years.* 

Of the deportment of Judge Black as Chief Justice, 
both in banc and at Nisi Prius, we have enjoyed full 
opportunities of knowledge, and can therefore speak 
with more safety, than when compelled to rely upon 
the representations of others, who may be swayed by 
favor or influenced by prejudice. 

The style of Judge Black's composition is unlike 
any other with which we are acquainted. It is fluent, 
sententious, argumentative, facetious and sarcastic. It 
is, to our mind, a beautiful style, and the wonder is, 
where he should have formed it. There certainly could 
have been no temptation within the ordinary jurisdic- 
tion of a county court, to lead to so much perfection in 
composition ; nor could his opportunities while at the 
bar account for his literary excellence — nor had he the 
advantages Franklin and many others enjoyed, in a 
printing-office, which, in itself, with a bright pupil, is the 
best of schools. Where, then, did he obtain it? He ob- 
tained it where Shakspeare, and Johnson, and Chat- 
terton, and Burns, obtained theirs — from the force of 
innate genius ; by which opportunities of knowledge are 
not only improved, but created. 

Still, he must have read much — all his productions 

"^ At tlie expiration of his term in 1854, lie was re-elected by a large 
majority, and is continued in his judgeship for fifteen years. 



JEREMIAH S. BLACK, L.L.D. ^Q^ 

show it. But there are many who have read more, 
whose reading has turned to comparatively little ac- 
count, for want of that nice appreciation and adaptation 
of language, which is remarkable in all the Kterary efforts 
of Chief Justice Black. If we were asked to say in what 
the chief merit of his composition depends, we should an- 
swer, in the perfect clearness with which he exhibits his 
thoughts — whether right or wrong, no man can misun- 
derstand him. He is not one of those, whose attempted 
illustrations render the idea intended to be conveyed 
more obscure; or who obliterate the impressions already 
made, by uselessly travelling over the same ground. 
He does not draw so much from reports as from the 
pure fountain head.- He drinks from the Hving waters 
of the law, instead of Indulging and disporting himself 
in the dirty, turbid, and devious channels, which have 
received the sediments of the science, without its phi- 
losophy or purity. 

There is one quality possessed by the Judge, that 
may be appropriately called alacrity. He enters cheer- 
fully upon his duties, is remarkable for the quickness 
of his apprehension, and manifests imdivided attention 
to the business in hand. No man who observes him 
during the progress of an argument or a trial, can fail 
to perceive that his mind is actively engaged in noting 
all its phases, narrowly watching its tendencies, and in 
deducing its just results. The intelligence of his coun- 
tenance, the quickness of his eye, and the vivacity of 



I 

108 THE FORUM. 

Ms whole manner throw a charm over the most per- 
plexing and embarrassing investigations, the effect of 
which all acknowledge, but none can describe. 

On and oif the bench, there is a modesty, a candor, 
a sincerity and good humor about him, that favorably 
impress all within the circle of their influence. This is 
obviously natural to him, and of course, therefore, it 
is uniform, and requires no effort. 

In the directness of his opinions delivered in banc, 
he has no superior. His style is very clear and very 
pure, sententious, cogent, and perfectly intelligible, and 
if sometimes defective in taste, it is from his occasion- 
ally throwing into it too much pungency, piquancy, 
and wit, which tend to excite our risibles, instead of 
conformmg to the rule of judicial gravity. 

Chief Justice Black is about five feet ten inches 
high, of strong, compact, and active frame, apparently 
capable of enduring great physical toil, and no incon- 
siderable intellectual application. His countenance is 
animated and intelligent, and indicates plainly great 
acuteness of apprehension and comprehensiveness of 
thought. He is a brave, manly and ingenuous judge. 
He approaches a point courageously, never blinks it or 
fritters it away ; and when he commits an error — ^for 
men will err, even though they are judges — he obvi- 
ously takes more pleasure in confessing his faults, than 
in boasting his virtues. This is one of the highest 
quahties of a judge. 



JEREMIAH S. BLACK, L.L.D. ^QQ 

We would as leave argue a question before Judge 
Black, sitting .in banc, that lie had decided at Nisi 
Prius, as though he had never decided it at all. How 
unlike this is to a selfish and opinionative judge, who 
considers sticking to what is wrong, as equivalent to 
making it right, and who will not, or cannot sacrifice his 
personal and intellectual pretensions, to his moral and 
official obhgations. Obstinacy is a virtue only when 
it is enlisted in behalf of truth, virtue and justice, and 
sanctioned by reflection and wisdom. 

Judge Black is quick, but not hasty. His temper 
upon the bench is amiable, and his manner, though not 
the most bland and courtly, exhibits great frankness 
and warmth of heart — two of the best substitutes for 
etiquette and social refinements. 

Wherever known, he would have been considered 
a man to be remembered — no common-place man, no 
ordinary case lawyer. Nor are his classical attainments 
much inferior to his legal lore. His eulogy upon Chief 
Justice Gibson, reflects equal honor upon his head and 
his heart, and I remember to have heard it said by one^ 
of the literati, who had a right to judge, that the best 
biography or memoir of Greneral Jackson that ever was 
produced, was written by one Black, from the backwoods 
of Pennsylvania, whom he had never seen, but should 
always admire. That Black, from the backwoods of Penn- 
sylvania, was Jeremiah S. Black, who finally became the 
Chief Justice of Pennsylvania. We shall have occasion 



-j^-^Q THE FORUM. 

hereafter, in a more* appropriate place, to introduce 
some extracts from these masterly performances. His 
success, in the last instance, is not so wonderful, when it 
is known that in some respects, General Jackson was 
the prototype of Judge Black. The same firmness of 
character, the same self-reliance, the same generosity, 
the same unflinching integrity, the same devotion to 
friends and antipathy to enemies, the same native and 
indomitable energy characterize them both. That there 
should have been sympathy between them, therefore, 
is no matter of surprise, and those who sympathize 
most with others, best understand, and can best describe 
them. 

Having spoken of the style of Judge Black, we are 
free to admit that, in such estimates, men are likely to 
be governed by their own individual tastes. There is 
no exact and established standard by which opinion 
can be regulated. Some men judge style from the 
sentiments it expresses; as others judge sentiments 
from the style. Some condemn what others approve ; 
and in this state of diversity and contrariety of opinion, 
we cannot do better, in closuig this memoir, than sub- 
mit to the test of criticism, a few brief extracts from 
those productions, to which we have taken occasion to 
refer. And in the first place, as it is always gratifying 
to find eminent men shedding light upon others holding 
a similar position, we present to the readers Judge 



JEREMIAH S. BLACK, L.L.D. HI 

Black's notice of the lamented Gibson, his immediate 
predecessor in office : — 

"By this bereavement the court has lost what no time can repair; 
for we shall never look upon his like again. We regarded him more 
as a father, than a brother. None of us ever saw the Supreme Court 
before he was in it; and to some of us, his character as a great judge 
was familiar, even in childhood. The earliest knowledge of the 
law we had, was derived in part from his luminous expositions of 
it. He was a judge of the Common Pleas before some of us were 
born, and was a member of this Court long before the oldest was 
admitted to the bar. For nearly a quarter of a century he was 
Chief Justice ; and when he was nominally superseded by another 
as the head of the Court, his great learning, venerable character, 
and overshadowing reputation, still made him the only chief whom 
the hearts of the people would know. 

" At the time of his death, he had been longer in of&ce than any 
cotemporary judge in the world, and in some points of character 
he had not his equal on the earth. Such vigor, clearness, and 
precision of thought, were never before united with the same felicity 
of diction. Brougham has sketched Lord Stowell justly enough 
as the greatest judicial writer that England could boast of for force 
and beauty of style. He selects a sentence, and calls on the reader 
to admire the remarkable elegance of its structure. I believe that 
Judge Gibson never wrote an opinion in his life, from which a 
passage might not be taken, stronger, as well as more graceful in 
its turn of expression, than this, which is selected with so much 
care, by a most zealous friend, from all of Lord Stowell's decisions. 

" His written language was a transcript of his mind; it gave the 
world the very form and pressure of his thoughts. It was accurate 
because he knew the exact boundaries of the principles he dis- 
cussed. His mental vision took in the whole outline, and all the 



112 THE FORUM. 

details of wliat lie saw. He made others understand him, because 
lie understood himself — 

' Cui lecta potenter erit res 
Nee faeuudife deseret liunc nee lucidus ordc' 



" His style was rich, iDut lie never turned out of his way for 
figures of speech. He never sacrificed sense to sound, or preferred 
ornament to substance. If he reasoned much, by comparison,' it 
was not to make his composition brilliant, but clear. He spoke in 
metaphors often ; not because they were sought, but because they 
came to his mind unbidden. The same vein of happy illustration 
ran through his conversation, and his private letters. He never 
tliought of display, and seemed totally unconscious that he had the 
power to make any. His words were all precisely adapted to his 
subject. He said neither more nor less than just the thing lie 
ought. He had one faculty of a great poet — that of expressing 
a thought, in language which could never afterwards be para- 
phrased. When a legal principle passed through his hands, he 
sent it forth clothed in a dress which fitted it so exactly, that 
nobody ever presumed to give it any other. Almost universally, 
the syllabus of his opinions is a sentence from itself, and the most 
heedless student, in looking over Wharton's Digest, can select the 
cases in which Gibson delivered the judgment, as readily as he 
would pick gold coins out from among coppers. For this reason 
it is, that, thougb he was the least voluminous writer of the Court, 
the citations from him at the bar are more numerous than from all 
the rest put together. The dignity, richness, and pjurity of his 
written opinions, was by no means his highest title to admiration. 
The movements of his mind were as strong as they were graceful. 
His periods not only pleased the ear, but sunk into the mind. He 
never wearied th.e reader, but be always exhausted the subject. 
A.n opinion of his was an unbroken chain of logic from beginning 



JEREMIAH S. BLACK, L.L.D. 113 

to end. His argumentation was always cliaracterized by great 
power, and sometimes it rose into irresistible energy, dashing oppo- 
sition to pieces with a force like that of a battering ram. He never 
missed tbe point even of a cause wMch bad been badly argued. 
He separated tbe cbaff from tbe wbeat almost as soon as be got 
possession of it. Tbe most complicated entanglement of fact and 
law would be reduced to barmony under bis bands. His arrange- 
ment was so lucid, tbat tbe dullest mind could follow bim, witb 
tbe intense pleasure wbicb we all feel in being able to comprehend 
tbe workings of an intellect so manifestly superior. Yet be com- 
mitted errors— it is wonderful tbat, in tbe course of bis long ser- 
vice, be did not commit more. A few were caused by inattention; 
a few by want of time ; a few by preconceived notions, wbicb led 
bim astray. Wben be did tbrow bimself into tbe wrong side of a 
cause, be usually made an argument wbicb it was mucb easier to 
override tban to answer . Witb reference to bis erroneous opinions, 
be might have used the words of Virgil, which be quoted so hap- 
pily in Eaken v. Kaub, 12 S. & R. — 

' Si pergama dextera defend! potui 
Hac defensa fuisset.' 

"But be was of all men, the most devoted and earnest lover of 
truth for its own sake. When subsequent reflection convinced 
him that be bad been wrong, he took the first opportunity to ac- 
knowledge it. He was often the earliest to discover his own mis- 
takes, as well as the foremost to correct them. He was inflexibly 
honest. The judicial ermine was as unspotted wben he laid it 
aside, as it was wben be first assumed it. I do not mean to award 
bim merely tbat common place integrity, which it is no honor to 
have, Uit merely a disgrace to want. He was not only incorruptible, 
but scrupulously, delicately, conscientiously free from all wilful 
wrono-, either in thought, word, or deed. Next, after bis wonderful 



j^j[^ THE FORUM. 

intellectual endowments, tlie benevolence of liis heart was tlie most 
marked feature of liis character. He was a most genial spirit ; 
affectionate and kind to his friends, and magnanimous to his ene- 
mies. Benefits received by him were engraved on his memory, 
as on a tablet of brass; injuries were written in sand. He never 
let the sun go down on his wrath. A little dash of bitterness 
in his nature would perhaps have given a more consistent tone 
to his character, and greater activity to his mind. He lacked the 
quality which Dr. Johnson admired. He was not a good hater. 
His accomplishments were very extraordinary. He was born a 
musician, and the natural talent was highly cultivated. He was a 
connoisseur in painting and sculpture. The whole of English 
literature was familiar to him. He was at home among the ancient 
classics. He had a perfectly clear perception of all the great truths 
of natural science. He had studied medicine carefully in his youth, 
and understood it well. His mind absorbed all kinds of knowledge 
with scarcely an effort." 

The Eulogy npon Jackson, thougli less polislied, is 
equally eloquent and cogent. It breathes the spirit of 
him whom it commends — 



" Among the military leaders of this country, whose talents were 
developed by the last war, Jackson stands alone and peerless, 
without a rival to come near him. He had all the qualities of a 
great commander; courage, vigilance, activity and skill. His at- 
tack was the kingly swoop of the eagle on his prey, and his defence 
was like that of the roused lion when he stands at bay in his native 
jungle. His character in this department is indeed sui generis 
altogether. The history of the world contains no record of any 
man who has done so much, and done it so well, with means so 



JEREMIAH S. BLACK, L.L.D. ^I^ 

inadequate. He was not a ' fortunate soldier.' All tlie circum- 
stances with which he . was surrounded were adverse. But his 
daring spirit made fortune bend to him, and compelled her to bless 
his standard with a success she never meant for him. 

"It is not, however, upon his military services that his fame 
rests principally. His defence of our Constitution deserves, and 
posterity will pay to it, a higher praise than his deeds of arms are 
entitled to. For him peace had her victories far more renowned 
than those of war; They elicited from him higher qualities of 
mind and heart. The nerve that meets an enemy on the field is 
comparatively a cheap virtue, for thousands in all ages have had it. 
But it is not once in a century, that a man is born with the high 
moral courage, which fits him to take the lead in a great reform." 

" This priceless gift was bestowed on Jackson in all its perfec- 
tion, and it placed him in the very front of the world's march. He 
saw further into futurity than any man of his time, and his was the 
fearless honesty to tell his countrymen what he did see. He had 
a heart full of hope and manly trust in the people; and they were 
true to him, because he was true to them. He pursued wise ends 
by fair means, and in doing so, he knew fear only by name. No 
abuse was too sacred, no fraud too popular, for the unsparing 
hand of his reform. He was no demagogue to fawn upon the 
masses and flatter their prejudices. He spoke to them like a 
friend, for he was their friend — their devoted and faithful friend — 
but he told them plain truth, whether they liked to hear it or not. 
He knew that no appeal for evil purposes could be made to any 
people so successfully, as one addressed to their covetousness, and 
that no deity had votaries so faithful or so numerous as those of 
Mammon, the meanest and ' the least erect of all the spirits that 
fell.' He saw the frightful superstition which made strong men 
bow before the shrine of that base idol, covering the nation as with 
a dark pall, and weaning the hearts of the people from the worship 
of liberty and justice. Did he encourage their strong delusion by 



11Q THE FORUM. 

joining in tte adoration ? No; he struck at the false god in his 
very temple, and took his priests by the beard even between the 
horns of the altar. 

" He has been called ambitious. In one sense this accusation of 
his enemies coincides exactly with the praises of his friends. He 
tvas ambitious. But his was the ambition of a noble nature — an 
affectionate yearning to be loved by his country as he loved her — 
an intense desire to leave behind him a name hallowed by its asso- 
ciation with great and beneficent actions — and to sleep at last in a 
grave made sacred by the veneration of the wise and the virtuous. 
Let those who object to such ambition make their worst of it. But, 
if any one supposes that his life was at all influenced by the vulgar 
love of power for its own sake, or by the sordid desire to pocket the 
emoluments of public station, let him remember this : that there 
never was a period from Jackson's arrival at the age of twenty-one 
till the day of his death, when he might not have been in the pub- 
lic service if he had so chosen ; yet he spent more than half his 
time in private retirement. He never in his life, upon any occa- 
sion, solicited the people or any of their appointing agents for a 
place. His countrymen pressed upon him eleven different offices, 
without any procurement of his. Some of them he accepted with 
reluctance, and all of them he resigned before the terms expired, 
except one ; that one he surrendered back to the people, after hav- 
ing held it as long as Washington held it before him. 

" Others have said that he was overbearing and tyrannical — a 
contemner of all authority. No one can deny that he was a man 
of strong will, impetuous passions, and fiery temper.* But he was 
most emphatically a law-abiding man. If there ever lived one 
who would go further to defend the constitution and laws of his 
country, or more cheerfully shed his blood to save them from vio- 
lation, neither history nor tradition has told us who he was. There 
is not a solitary act of his life among the many adduced to support 
this charge, which is not capable of a most clear and satisfactory 



JEREMIAH S. BLACK, L.L.D. 1\^ 

defence. It is certain tliat, wlien engaged in the public service, 
lie never suffered any one to interfere with.- his plans. When he 
formed them, he executed them ; and if it became necessary to do 
so, he was ready to stake, not only his mortal existence, but his 
character (which was infinitely dearer to him) on the issue. It is 
this unequalled moral courage which lifts him so high above com- 
mon great men. Others have been willing to die for their country, 
but he perilled life, fortune and fame together. And let it never 
be forgotten, that these things were uniformly done in defence of 
public liberty — it was always for his country, never for himself, 
that he/took the responsibility.' " 



CHAPTEE V. 

ELLIS LEWIS, L.L.D., 

PRESENT CHIEF JUSTICE OF THE SUPREME COURT OF PENN- 
SYLVANIA. 

BORN, 1799— APPOINTED, 1S54. 

Ellis Lewis was bom in Lewisburg, York county, 
Pennsylvania, and is now fifty-seven years of age. 
His paternal ancestors were from Wales, and were 
persons of respectability. His maternal ancestors 
were from Drogbeda, in Ireland ; some of them inter- 
married with English wliile abroad, so that the Lewis 
family may be said to have brought with them a cross 
of English, L'ish, and Welsh origins. 

Ellis Lewis was one of four brothers ; three became 
lawyers. In early life they had all been practical 
printers. The eldest, Lewis, was a doctor of medicine, 
as well as a lawyer. James was a practising lawyer 
at the York bar, and ranked highly in the profession ; 
the fourth brother was the editor of a paper in York 
and Baltimore. 



ELLIS LEWIS, L.L.D. ^19 

At nine years of age ElKs Lewis was bereft of Ms 
parents, and a few years after he entered into " that 
best of schools," a printing-oihce. He was after- 
wards employed in an office in New York, where he 
became a companion and friend of General George P. 
Morris. From New York he returned to Lewisburg, 
studied medicine for a time and then went to Balti- 
more, where he attempted to renew his business as a 
printer. This not succeeding, he next betook himself 
to Williamsport, Pennsylvania. In 1820, he began 
the study of the law, and in 1822, was admitted to 
the bar, and shortly after brought his wanderings to 
a favorable close by marriage. In 1823, he became 
deputy Attorney General, for Lycoming and Tioga 
counties. He was assiduous to his duties, though 
he labored for years under a painful and distressing 
indisposition, which so reduced him, that he had to 
be borne upon a litter to York county, where he was 
relieved from the effects of his disease and restored to 
usefulness. 

He resigned his appointment and removed to Brad- 
ford, where he soon succeeded in establishing himself 
in a lucrative business. He was a self-made man, and 
he was therefore competent to self-support; he did not, 
however, confine himself to the law. 

In 1832, he entered zealously into the political arena 
in behalf of General Jackson. From his distinguished 
services at that juncture, he was sent as a delegate to 



220 THE FORUM. 

the State convention, and was soon after elected to the 
legislature, by an overwhelming majority. 

His legislative career, though highly distinguished, 
was terminated by his appointment as Attorney Gene- 
ral, in 1833, by Governor Wolf. As Attorney General, 
he refused all fees for public promotions, leaving them 
to his deputies — an example worthy of imitation. 

In the autumn of 1833 he resigned the office, having 
been appointed President Judge of the Eighth Judicial 
District of Pennsylvania, composed of Northumberland, 
Lycoming, Union, and Lancaster. There he continued 
twelve years, when he was appointed President Judge 
of the Second Judicial District, containing the city and 
county of Lancaster. To show his extraordinary in- 
dustry while on the bench, he also discharged the 
duties of Professor of Law, and Medical Jurisprudence, 
in Franklin college, Lancaster, and at the same time 
assisted in the publication of a valuable law journal. 

While holding this position, there was an incident 
deserving notice, showing the extent of his fame, and 
the reliance that was always placed upon his veracity 
and mtegrity of character, by all who knew him. It 
runs thus : — 



" A short time JDefore tlie territory of Iowa was fully organized, 
so as to enforce tlie laws^ two men were arrested for passing coun- 
terfeit notes in Dubuque. As tlie people liad no otlier court in 
operation at the time, what is known as a lynch court, was con- 



ELLIS LEWIS, L.L.D. 221 

stituted. It consisted of a sort of town meeting, with a gentleman 
of the name of Peter Hill Engle, acting as president. .The two 
men accused were fairly tried and convicted. The testimony 
against one of them was perfectly clear; he had passed a number 
of spurious notes, and had a large quantity in his possession. He 
was sentenced to receive a certain number of lashes, as there were 
no jails or penitentiaries. The other convict had passed no spuri- 
ous notes, nor had any been found in his possession ; on the con- 
trary, all the money in his possession, amounting to eight hundred 
dollars, was admitted to be genuine. But the evidence was, that 
the two had lodged at the same inn the night before, and had tra- 
velled together that day. This primitive tribunal drew the infer- 
ence, from the circumstances, that one passed the notes, and the 
other was the treasurer, to take charge of the genuine money 
/ received in their business operations. The one found gu.il ty of 
being the treasurer of the company, immediately appealed from 
the decision. On being asked to what tribunal he appealed, he 
paused a moment, and then answered — ' I appeal to Judge Lewis, 
of Pennsylvania.' " 

The record, with the evidence, was accordingly cer- 
tified to Judge Lewis, by President Engle, with his 
written opinion, giving the reasons of the court for the 
decision. The defendant, whose name was Titus Losey, 
had been sentenced to pay a fine of eight hundred dol- 
lars, and the record showed that the fine had been col- 
lected. Judge Lewis entertained the jurisdiction, and 
gave a written opinion, that the mere circumstance of 
being found in company with a counterfeiter, was not 
sufiicient to repel the general presumption of inno- 
cence ; that man was naturally a social animal ; that 

VOL. II. — 9 



3^22 THE FORUM. 

this feeling would be manifested more readily wliere 
two strangers meet in a new country, and happened to 
lodge in tlie same inn, and to be joui'neying in. the 
same direction. On the whole evidence, the judgment 
below was reversed, and restitution of the fine (which 
had been collected,) awarded. The record was duly 
remitted to Judge Engie, to be carried into execution, 
and the decision was promptly obeyed and the money 
refunded. 

An extraordinary case presented itself before the 
August sessions of the Lycoming County Com't, in 1842, 
which is entitled to notice, from its bearing upon parental 
authority, domestic happiness, and religious freedom. 
It was the case of The Commonwealth v. Armstrong. 

The circumstances were these : — In February, 1842, 
the defendant prohibited the Hev. William S. Hall 
(the complainant,) from admuiistering the ordinance 
of baptism, by immersion, to his minor daughter, 
aged about seventeen, she having previously been 
baptized in the Presbyterian church, to which her 
mother belonged. The prohibition was attended by 
threats of personal violence, if the complainant per- 
sisted. On the second sabbath in April following, the 
complainant baptized the daughter without the father's 
knowledge. This coming to the father's knowledge, 
on the following Monday he followed the complainant 
with such threats, as induced his present application 
for surety of peace. 



ELLIS LEWIS, L.L.D. ][23 

Upon the exhibition of these facts, Judge Lewis in 
substance thus expresses his opinion : — 

"Whatever may be the rights of a parent in defence of his 
child, it is clear he has no right to take the law into his own hands, 
and to inflict punishment upon those who have already injured 
him. This is vengeance, and not defence. The defendant, there- 
fore, must give surety in $500 to keep the peace, &e.; but as we 
have authority to impose the costs, we direct the complainant to 
pay the costs, which his own first wrongful act has occasioned." 

So far for the judgment in the case, but the reason- 
ing and law which authorized that judgment is of su- 
p'erior importance, and thus, in the language of the 
learned judge, his views are explained, so far as is 
necessary to our present purpose :— 

"The authority of the father results from his duties; he is 
charged with the duties of maintenance and education. These 
cannot be performed without the authority to command and to 
enforce obedience. The term education, is not limited to the ordi- 
nary instruction of the child in the pursuit of literature ; it com- 
prehends a proper attention to the moral and religious sentiments 
of the child. In the discharge of this duty, it is the undoubted 
right of the father to designate such teachers, either in morals, 
religion, or literature, as he shall deem best calculated to give cor- 
rect instruction to the child. No teacher, either in religion or in 
any other branch of education, has any authority over the child, 
except what he derives from its parent or guardian ; and that au- 
thority may be withdrawn whenever the parent, in the exercise of 
his discretionary power, may think proper. If he should come to 



-|2^ THE FORUM. 

tlie conclusion tliat tlie attendance of his cliild upon tlie ministra- 
tion of any particular religious instructor is not conducive to its 
welfare, lie may prohibit sucli attendance, and confine it to sucli 
religious teachers as lie believes will be most likely to give it cor- 
rect instruction, and to secure its welfare here, and its eternal hap- 
piness in the world to come. He cannot force it to adopt opinions 
contrary to the dictates of its own conscience, but he has a right 
to its time and its attention during its minority, for the purpose of 
enabling him to make the effort incumbent on him as a father, of 
' training it up in the way it should go/ He may not compel it 
against its own convictions of right, to become a member of any 
religious denomination, but after it has been initiated, with its own 
free will, into the religious communion to which its parent belongs, 
he may lawfully restrain it during its legal infancy, from violating 
the religious obligations incurred in its behalf, by placing itself 
under the religious control of a minister whose opinions do not 
meet its parent's approbation. The patriarchial government was 
established by the Most High, and, with the necessary modifica- 
tions, it exists at the present day. The authority of the parent 
over the youth and inexperience of his offspring, rests on founda- 
tions far more sacred than the institutions of man. ' Honor thy 
father and thy mother,' was the great law proclaimed by the King 
of kings. It was the first commandment, accompanied with a pro- 
mise of blessings upon those who obeyed it ; while the dread pen- 
alty of death, was inflicted upon all who were guilty of its infrac- 
tion. ' The eye that mocketh at his father, and despiseth to obey 
his mother, the ravens of the valley shall pick it out, and the 
young eagles shall eat it.' Prov. xxx. 17. 'The stubborn and 
rebellious son, who will not obey the voice of his father, shall be 
stoned with stones, that he may die, and all Israel shall hear and 
fear.' Deut. xxi. 21. Abraham 'commanded his children, and 
his household after him, to keep the way of the Lord.' Joshua 
resolved, both for himself and his house, to serve the Lord. And 



ELLIS LEWIS, L.L.D. ]^25 

t^lie house of Eli was destroyed becaiTse Iiis sons made tliemselves 
vile, and lie restrained them not. ' My son, keep the instruction 
of thy father, and forsake not the law of thy mother.' Prov. i. 8, 
9, and Prov. vi. 20. ^ A fool despises his father's instructions.' 
Prov. XV. 5. ' A wise son heareth his father's instructions.' Prov. 
xiii. 1. ' Cursed be he that setteth light by his father or his mo- 
ther, and all the people shall say. Amen.' Deut. xxvii. 16. It 
was justly remarked by the hoary professor of moral philosophy, 
in his treatise upon that subject, that the words Hrain up a child 
in the way it should go,' imply both the right and the duty of the 
parent to train it up in the right way. That is, in the way which 
the parent believes to be right. The right of the father to com- 
mand, and the duty of the child to obey, is thus shown upon the 
authority of the Old Testament, to have been established by God 
himself. And the teachings of the JSTew Testament abundantly 
prove that, instead of being abrogated in any respect, the duty of 
filial obedience was inculcated with all the solemn sanctions which 
could be devised from the new dispensation. The fifth command- 
ment, ' Honor thy father and thy mother,' was repeated and en- 
joined by Saint Paul, in his Epistles to the Collossians, ' Children, 
obey your parents in the Lord, for this is right.' Ephesians, vi. 1. 
' Children, obey your parents in all things, for this is well-pleasing 
unto the Lord.' Collossians, iii. 20. If anything can give addi- 
tional weight to the authority on which rests the doctrine of filial 
obedience, it is the practical commentary furnished by the Saviour 
himself. In his quality of Grod, it was incumbent upon him, to 
• be about the business of his heavenly Father at Jerusalem, ' both 
hearing the doctors, and asking them questions.' But in his 
quality of man, he left the temple and all its teachings of wisdom, 
and in obedience to the wishes of his earthly parents, ' he' went 
down with them to Nazareth, and was subject unto them.' Luke, 
ii. 51. Dr. Adam Clark, in his Commentaries on the tenth chap- 
ter of Genesis, declares that the duty of children to their parents, 



126 THE FORUBI. 

is next iu order and importance to tlie duty we owe to God. No 
circumstance can alter its nature or lessen its importance. ' Honor 
tlij- father and tliy mother/ is tlie sovereign, everlasting command- 
ment of Grod. Paley, in his 'System of Ethics/ declares it to be 
the duty of a parent to educate his children, to form them for a 
life of usefulness and virtue, and asserts that he has a right to 
such authority, and iu support of that authority, to exercise such 
discipline as may be necessary for these purposes. Dr. Adams, in 
his work upon the same subject, says, that children are to regard 
their parents as standing in the most venerable and the most en- 
dearing of all earthly relations to them, as those to whom, under 
Grod, they owe everything that they are, and everything they hope 
to be. They are to regard them as the persons to whose kindness, 
care, and government they have been committed by God himself. 
The great and good Dr. Wayland, President of Brown University, 
and a distinguished minister of the gospel of the same denomina- 
tion with the prosecutor, declares, in his work on moral science, 
that 'the right of the parent is to command — the duty of the 
child to obey. Authority belongs to the one, submission to the 
other. This relation,' he continues, ' is established by our Creator. 
The failure of one party, does not annihilate the obligations of the 
other. If the parent be unreasonable, this does not release the 
child; he is still bound to honor, and obey, and reverence his 
parent. The duty of parents is to educate their children in such 
a manner, as they (the parents,) believe will be most for their 
future happiness, both temporal and eternal. The parent is under 
obligation to cause his children to be instructed in those religious 
sentiments which the parent believes to be according to the will of 
God. With his duty in this respect, no one has a right to inter- 
fere. If the parent be in error, the fault is not in teaching the 
child what he believes, but in believing what is false, without 
using the means which God has given him to arrive at the truth. 
In such matters he is the ultimate and the only responsible autho- 



ELLIS LEWIS, L.L.D. 



127 



rity. While lie exercises his paternal duties within their prescribed 
limits, he is by the law of Grod exempt from interference, both from 
individuals and from society. In infancy (under twenty-one,) the 
control of the parent over the child is absolute — that is, it is exer- 
cised without any respect whatever to the wishes of the child.' 
These are the sentiments of a man of great learning, piety, and 
purity of heart, of one whose fame has extended itself into every 
part of this wide-spread Union, and the learned and the good of 
other nations have been taught to know and to appreciate his 
exalted worth. His works will remain after the present generation 
shall have passed away, an imperishable monument to his memory. 
The doctrines of the common law are in accordance with these 
principles ; it is the duty of the parent to maintain and educate the 
child, and he possesses the resulting authority to control it in all 
things necessary to the accomplishment of these objects. The law 
assigns no limits to the authority of the parent over the child, 
except that it must not be exercised in such a manner as to endan- 
ger its safety or its morals. If the parent should transcend his 
authority in this respeci^ an appeal does not lie to the minister of 
the gospel of any denomination whatever. Application for relief 
can only be made to the authorities, entrusted by the supremacy of 
the law, with the high power of controlling parental authority, 
when the morals or safety of the child require such interference ; 
1 Blackstone, 450 ; 2 Kent's Commentaries, 205. The Orphans' 
Court has by law the right to appoint guardians for orphan chil- 
dren ; but so careful has the Legislature been of the right of the 
parent to have his offspring brought up in the religious persuasion 
to which he belongs, that the Court is bound to • have respect to 
this consideration in the selection of guardians, and persons of the 
same religious faith as the parents, must be preferred over all 
others. The highest judicial power in the commonwealth dare 
not attempt to estrange the child from the religious faith of its 
parents. Shall this power be exercised by a private individual, 



128 THE FORUM. 

because he happens to be a minister of the gospel ? Shall any 
man^ high or low, be allowed to invade the domestic sanctuary, to 
disregard the parental authority established by the Almighty, to 
set at nought the religious obligations already incurred in behalf 
of the child at its baptism, to seduce it away from its filial obedi- 
ence, or even to participate in its disregard of parental authority, 
for the j)urpose of estranging it from the faith of its parents, or 
introducing it into a religious denomination different from that to 
which its parents belong? Grod forbid, that the noblest and holiest 
feelings of the human heart should be thus violated — that the en- 
dearing relations of parent and child, should be thus disturbed — 
that the harmony of the domestic circle should be thus broken up, 
and that the family altar, itself, should be thus ruthlessly rent in 
twain and trodden in the dust." 

The opinion of Chancellor Kent, as expressed in the 
following letter to Judge Lewis, imparts to the doctrine 
contained in the foregoing decision, the ratification of 
one of the most 'distinguished jurists of the country or 
the age. 

"New York, October 5, 1842. 
" Dear Sir : — I have received, and read with much pleasure, 
your opinion in the case of Armstrong ; and I agree with you 
in reasoning and conclusion. Before I received your friendly 
letter, (for which I thank you,) I had noted in a blank leaf, in a 
proper place in my commentaries,* the decision, as a just explana- 

* The entry referred to by Cliancellor Kent, will be found in a note to 
pages 262 and 263, of the second volume of his Commentaries on Ame- 
rican Law, published in 1844. It runs thus : — "In the case of the Com- 
monwealth V. Armstrong, in the sessions of the peace for Lycoming 
county, 1842, Mr. Justice Lewis, the president judge, decided, after a 



ELLIS LEWIS, L.L.D. 229 

tion and application of the parental autliority, to a case like tlie 
oiie before you. 

" "With the assurance of my respect and esteem, 
" I am, dear sir, 

" yours truly, 

"James Kent." 

" Hon. Ellis Lewis." 

The Honorable R.. C. Grier, in a letter upon the 
same subject, of the date of the fourteenth October, 
1842, says : — " It is clear as a demonstration, and the 
conclusion incontrovertible, by any who acknowledge 
themselves bound by the law of the land, or the word 
of God, — to the parent is committed the sacred duty 

learned examination of the subject, that a minister of the gospel had no 
right, contrary to the express commands of the father, to receive an infant 
daughter, under the immediate guardianship of the father, from the church 
to which the father belonged, and in which the child was baptized and 
instructed, and initiate it by baptism, into another church of a different 
denomination. It was held to be the right and duty of the parent, not 
only to maintain his infant children, but to instruct their minds in moral 
and religious principles, and to regulate their consciences by such a 
course of education and discipline. All interference with the parental 
power and duty, except by courts of justice, where that power is abused, 
is injurious to domestic subordination, and to the pubhc peace, morals, 
and security. ' Parents,' says a distinguished jurist on natural law, ^ have 
a right by the law of nature to direct the actions of their children, as being 
a power necessary to their proper education. It is the will of God, there- 
fore, that parents should have and exercise that power.' ' Nay,' he ob- 
serves, ' parents have the right to direct their children to embrace the 
relio'ion which they themselves approve.' " — Heinicius, b. 2, chap. 3, sees. 
52-55. 



230 THE FORUM. 

of' bringing up his children in the ^ nurture and admo- 
nition of the Lordj &c.' " 

The opinion of Judge Lewis is also fully endorsed 
by Dr. Wayland, President of Brown University, 
(Providence,) one of the most eminent moral philoso- 
phers of the time. • 

Judge Lewis has received the degree of Doctor of 
Laws and Doctor of Medicine, and he richly merited 
both. Lideed, if his honors had been equal to his 
deserts, D.D. might also have been appropriately con- 
ferred upon him. To say that these distinctions are 
not matters of pride with him, would hardly be believed; 
for if we were called upon for an opinion as to what is 
his highest ambition, we should incline to the belief, 
that it is du-ected to eminence in all^ rather than any 
'particular science. The diversity of his application is 
such that the change seems to afford relief, and he 
knows each branch of his studies better, from extra- 
ordinary familiarity with all. 

But his liighest quality is his conscientiousness. 
His judgment is sometimes eccentric, but his conscience, 
never. No influence can swerve or sway him from 
what he believes to be right. 

In 1851, Judge Lewis, under the Constitution, and 
amendments of 1850, was elected a judge of the Su- 
preme Court, and, by allotment, provided for by law, 
became entitled to the post for six years. The judge 
who held for the shortest term, (three years,) was to 



ELLIS LEWIS, L.L.D. ]^3;]_ 

sit as chief justice ; the next shortest, (six j^ears,) in 
turn became entitled to that position. Upon the ex- 
pkation of Judge Black's term, Judge Lewis succeeded 
him, and became chief justice, from the first Monday 
of December, 1854, for six years. 

Since Judge Lewis has been in his present situation 
he has abundantly sustained his former character, and 
fulfilled the expectations and hopes of those who knew 
him best and loved him most. For industry, he is une- 
qualled ; and industry such as his, let it be observed, 
is rarely the companion of a genius ^o comprehensive 
and various. 

He is not only a sound and discriminating lawyer, 
but he is well versed in medical jurisprudence, of 
which, as is known, he became a professor at Frank- 
lin College. His character as an advocate stood high 
wliile at the bar. He was familiar with the princi- 
ples of general science, and he acquired a respectable 
knowledge of the liberal arts. Nor is he deficient 
in classic literature ; and whatever obstructions he has 
encountered in an arduous, various, and honorable 
career, he has triumphed over by an industry an(? 
energy, seldom if ever excelled. 

Chief Justice Lewis is now in the 57th year of his 

age; five feet seven inches high; of a slender, but 

agile person ; black hair ; a dark, deep-set, penetrating 

eye, indicative of great kindness, great spuit, and great 

' quickness of apprehension. Any one to look at him, 



1^2 '•^^^ FORUM. 

would know him at once to Imve been a model of 
industry all Ms life. 

He is perhaps too much of a politician ; but that 
is not his fault so much as the fault of the cKcum- 
stances into which he has been thrown, by those acci- 
dents which are ever attendant upon the wayward 
footsteps of self-taught men. But, politician as he is, 
no one shall justly assert that he ever was a pohtical 
strategist, or deny that, in all his relations, private or 
pubhc, political, professional, or official, he has always 
proved a faithful and an honest man. He ever bears in 
mind the doctrine of Socrates, that " Three things be- 
long to a judge : to hear courteously, consider soberly, 
and give judgment without partiality." 

To say that he is an ambitious man, is to say no 
more than may be readily conceived from the traits of 
his life already exhibited ; but his ambition has ever 
had an honorable direction, and never stooped from its 
lofty flight to unite with meanness, or to play the pan- 
der to power, at the sacrifice of principle. He is a 
humane though a just judge; conciliatory and for- 
bearing with the bar, indulgent to the young and 
inexperienced, and especially sympathetic towards 
those who struggle for advancement in their profes- 
sion, under sullen influences, and against adverse cir- 
cumstances — 

" Taught by that powei* that pitied Jtim, 
He learns to pity them.^' 



ELLIS LEWIS, L.L.D. 133 

Ie a late work upon phrenology, Judge Lewis is 
spoken of in very favorable terms ; and without giving 
the author credit for deriving his opinions from phre- 
nological denotements, some of his remarks are per- 
fectly weU founded. He says, "Judge Lewis's tem- 
perament is the best imaginable ; that it will sustain 
an extraordinary amount of exertion; and bend instead 
of breaking under disease." This may all be true, and 
indeed is so ; but we should presume that this picture 
was drawn, not from the developments of phrenology, 
but from an intimate knowledge of Judge Lewis, as 
obtained from the experience which his whole life has 
supplied. 



CHAPTER VI. 

THE JTSTICES OP THE SrPRE]JE COEET, ENDER THE COJsSTITETION OF 
22 EEBREARY, 1838, WITH THE AMENDMENTS OP 1850. 

JUSTICE WOODWARD. 

We shall for the present draw no comparisons ; but 
regnlatmg our anticipations by our experience, there 
would be little hazard in saying, that in all the quali- 
fications of the judicial character, extensive legal learn- 
ing, sound morality, and most urbane and agreeable 
manners, there have been but few judges in the State, 
perhaps in the country, who, at his age, have given 
promise of greater excellence or eminence than the 
Hon. George W. Woodward. Let it not be said our 
praise is too general in regard to the members of this 
Court to be acceptable or valuable. This is nothing to 
us. If there be general merit, there should be gene- 
ral approval. We borrow no man's opinions, and ask 



JUSTICE WOODWARD. ]^35 

no man to adopt our's. Truth is more desirable and 
more valuable and more lasting tban popularity. We 
do not mean to say, that all or any of these judges are 
without faults ; but we leave it to others to find them 
out ', and trust we shall never manifest that very ques- 
tionable virtue, of seeking for vice or blemishes, where 
they do not betray themselves. 

Judges have a pretty hard life, and need not be 
envied. They can not please everybody, and they 
never satisfy the party or the counsel against whom 
they decide. How unreasonable, then, is it, when they 
encounter so many prejudices, to withhold from them 
the just meed of approbation. There is no safety in a 
judge that is swayed by any other consideration than 
a sense of duty. A very distinguished judge, upon an 
occasion, not many years since, nonsuited the plaintiff," 
to the great displeasure of the counsel, of course, which 
the judge perceiving, said to him, calling him aside, 
" You seem to be hurt." " To be sm-e I am," hastily 
replied the counsel. " I think I have reason to feel 
hurt." " I think you are mistaken," said the judge. 
" Remember, we have both our duties to perform, yours 
have been faithfully performed, and I trust so have 
mine. You have no more right to make yourself the 
judge, than I have to make myself the counsel." This 
once understood, and there can be no dissatisfaction. 

Judge Woodward's birth was on the 26th of March, 
1808, in the village of Bethany, Wayne County, Penn- 



]^36 THE FORUil. , 

sylvania. His parentage was as respectable as any in 
the State, of which no other voucher can be requu^ed 
than the moral and rehgious training of their son. 

The academic education of young Woodward was 
principally received at Geneva, New York, and at 
Wilkesbarre, in Luzerne County, Pennsylvania. Upon 
its completion he entered, at the latter place, into the 
office of the Hon. Garrick Mallary, and was admitted 
to practice at August term, 1830. 

In the spring of 1831, a few months after the ad- 
mission of Judge Woodward, Mr. Mallary was appoint- 
ed to the Bench of Northampton, Lehigh, and Bucks 
CountiQS, and upon assuming his seat, transferred his 
entire professional business, which then extended 
through all the counties of North-eastern Pennsyl- 
vania, to his favorite pupil, Mr. Woodward, who, though 
at that time not twenty-three years old, had already 
given an earnest of that industry, fidelity, and ability, 
which could not fail to secure future success and emi- 
nence at the bar. Judge Woodward, from the time of 
his admission, remained in Judge MaUary's office, which 
he retains still, down to the present moment. 

Here he continued in the enjoyment of full practice 
at the bar until the beginning of the year 1841. Cer- 
tainly no man of his age, at least in the .interior of the 
State, was ever more rapid in his advancement, more 
imphcitly relied upon by the community, or more de- 
serving of that advancement and reliance. 



JUSTICE WOODWARD. ^^^ 

In 1841, through Ms professional labors and expo- 
sure upon the cu-cuitSj his health beginning to fail, he 
accepted a commission as President Judge of the Fourth 
Judicial District, composed of the counties of Hunting- 
don, Mifflin, Centre, Crawford, and Clinton — territori- 
ally the largest district in the State. The two counties 
first named were taken from the district the next year, 
and in the other three, Judge Woodward presided until 
the expkation of his term of office, in the spring of 
1851. 

Declining an election in the Fourth District, (for at 
this time the office had by constitutional provision be- 
come elective) , and also declining a nomination on the 
state ticket for the Supreme Bench, he returned to his 
practice at Wilkesbarre, with the full intention of con- 
tinuing at the bar for several years ; and such was his 
.popularity with all who knew him, that he would have 
had no difficulty in retrieving his former lucrative and 
extensive business. But upon the death of Judge Coul- 
ter, in the year 1852, the appointment to the Supreme 
Court, in the place of the deceased judge, being ten- 
dered to him by the Executive, he accepted it, and 
thus unexpectedly, but not undeservedly, reached the 
highest judicial honors of the State. 

At the fall election (for the Governor's appointment 
was temporary and provisional,) he was chosen by the 
people for the full constitutional period of fifteen years, 
from the first day of December, 1852, 

VOL. II. — 10 



]^3g THE FORUM. 

Judge "Woodward is now about forty-seven years of 
agO; of an agreeable face, and graceful person. He is 
upwards of six feet high, well proportioned, always 
appropriately apparelled, and ever kind, attentive, and 
dignified in Ms deportment. Calm, patient, and medi- 
tative, he closely marks the progress of a cause and the 
course of the argument; exhibits no fretfulness, rarely 
interrupts counsel, never jumps to conclusions, but 
always bides his time. In his charges at Nisi Prius, 
and in his opinions in banc, no man can fail to perceive 
the lofty, legal, and moral tone of his mind. In his 
person, as we have elsewhere said, he strongly resembles 
Chief Justice Gibson at his age; but there is very little 
resemblance in the structure of their minds. Judge 
Gibson's attainments were more comprehensive and 
diversified, but less concentrated and available; his 
mental grasp was stronger, but it was not so steady. 
Judge Gibson struck a harder blow, but did not always 
plant it, or foUow it up, so judiciously. Judge Gibson 
sometimes rose above expectation, Judge Woodward 
never falls below it. Judge Gibson's industry did not 
uniformly equal his talents. Judge Woodward's talents 
are, if possible, surpassed by his industry. Judge Gib- 
son was, perhaps, the greater man, Judge Woodward 
the safer judge. 

When it is remembered that this comparison is made 
not between men of an equal age — for Chief Justice 
Gibson was more than twenty years the senior of Judge 



JUSTICE WOODWARD. ^39 

Woodward — we must in our computation, upon the one 
side, throw into the scale the experience which a score 
of years will probably produce ; while on the other, we 
must make allowance for the infirmity and defects, 
which are almost invariably attendant upon a life per- 
plexed with accumulated cares, and protracted beyond 
the Gospel allowance of three score years and ten. It 
is, indeed, much to be doubted, whether a man ever 
improves intellectually after he is sixty. He may 
still continue to acquire knowledge, but he also gra- 
dually loses much that he had previously gained. The 
impressions made upon the mind of the aged, as com- 
pared with the impressions upon youth, are like the 
writing in sand, compared with the inscription upon 
the retentive rock. 

In January, 1837, he became a member of the Con- 
vention for the amendment of the Constitution of 1790. 
This Convention was in session from time to time from 
January, 1837, until the 22d of February, 1838, It 
consisted, as is weU knoAvn, of some of the ablest and 
most distinguished men of the State. And when it is re- 
membered that Mr. Woodward was then under twenty- 
eight years of age, and had been admitted to prac- 
tice but about seven years, the prominent and ef&cient 
position which he held in such a body was remarkable, 
though not surprising to those who had been familiar 
with his talents and his virtues. His speech upon 
judicial tenures, a subject which called forth all the 



j_40 '^^^ FORUM. 

energies and eloquence of the Convention^ was far be- 
yond what could justly have been expected from one 
of his years, and, indeed, placed him in the ranks of 
the best debaters in that body. 



JUSTICE KNOX. 

The Honorable John C. Knox, one of the judges of 
the Supreme Court of Pennsylvania, is a native of 
Pennsylvania, and was born on the 17th day of Feb- 
ruary, 1817. His family, on the paternal side, were 
originally from Scotland, but have been residents in 
this country for nearly two centuries. But little is 
known of the course of his early education, the insti- 
tutions of learning with which he was connected, or the 
instructions which contributed to form his mind and 
establish his principles. This is the less important, 
however, as we have the result of an excellent train- 
ing presented by his entire life — whether derived from 
others, or springing from the native energy of his own 
intellectual frame, it would be useless to inquire. 

He, no doubt, had a better education than the most 
favored judge that ever sat upon the King's Bench — 
Lord Chief Justice Holt — who commenced an indolent 
career at a free school, was transferred at sixteen years 



JUSTICE KNOX. ]_4]^ 

of age to Oxford, where, before Ms first year was ex- 
pired, he was expelled for his irregularities and licen- 
tiousness ; and who, in after and prouder days, as his- 
tory informs us, wrote badly, renounced classical stu- 
dies, and cared nothing even for the polite literature of 
his own country. 

In the month of June, 1839, in the twenty-third 
year of his age, after having creditably passed through 
the necessary prehminary course of legal studies, Mr. 
Knox was admitted to the bar in Tioga County, Penn- 
sylvania. 

In October, 1840, he was appointed deputy Attor- 
ney General for that county. In this situation he con- 
tinued in the faithful discharge of his of&cial duties for 
three years, at the expiration of which time he resign- 
ed. In October, 1845 and 1846, he was elected to the 
Legislature, and at the session of 1847, received all the 
Democratic votes in caucus, on the first ballot, for 
Speaker. He was also voted for by his entire party in 
the House, but the Whigs having a majority, the Hon. 
James Cooper was the successful candidate. 

On the 10th of April, 1848, Judge Knox was nomi- 
nated by the late Governor Shunk, President Judge of 
the Tenth Judicial District, composed of the counties of 
Westmoreland, Indiana, and Cambria. This appointment 
was accordingly unanimously confirmed by the Senate, 

In October, 1851, the judiciary under the new Con- 
stitution having in the meantime been rendered elective^ 



142 THE FORUM. 

Jiido'e Knox was chosen President Judo^e of the Ei«:h- 
teenth Judicial District, composed of the counties of 
Venango, Clarion, and Jefferson; and this, too, while 
residing in and presiding over the Tenth District. 

In May, 1853, he received the appointment to the 
Supreme Court from Governor Bigier, to fill the va- 
cancy occasioned by the death of Judge Gibson, and in 
the October following, he was elected to that post for 
a term of fifteen years, by a majority of upwards of 
thu'ty-seven thousand, and received his commission ac- 
cordingly for the term of fifteen years, from the 1st of 
December, 1853. 

During Judge Knox's presidency in the Common 
Pleas, he held courts in the following counties — West- 
moreland, Armstrong, Indiana, Bedford, Beaver, But- 
ler, Erie, Venango, Clarion, Jefferson, Crawford, and 
Potter ; about one-fourth of the counties in the entire 
State, and probably more than any other judge now in 
commission has ever presided over. But the import- 
ance of judicial ser^dces consists more in the quality 
and character of those services, than their local extent ; 
and it may truly be said, in those respects, that the 
judicial merits of the learned Judge were as commend- 
able as his perseverance and industry. 

Judge Knox, in his new position, on the bench of 
the Supreme Court, maintains fully the character 
which recommended him to that station. He is mild 
and bland in his manner, unswerving in his principle, 



JUSTICE LOWRT. ^^^ 

laborious and patient in the discharge of his high func- 
tion, and while not unmindful of his own rights, stu- 
diously observant of the rights of others. 

In person, he is of the middle height, and somewhat 
corpulent, which, at his time of life, may seem a little 
inconsistent with the activity of his mind, and the 
severe toils he necessarily must have encountered in his 
career. It may partly be accounted for by the evenness 
of his temper, and a spirit of kindness and good-will 
which seem to prevail in his intercourse with his fel- 
low men, and which manifests itself as well in the be- 
nignity of his countenance, as the urbanity of his 
demeanor. With such an elective judge, there is 
everything to hope and nothing to fear, but his loss. 



JUSTICE LOWRY. 

One of the neatest, pleasantest, and most punctual 
judges on the bench, is Mr. Justice Lowry. He is 
well read in the common law ; well posted in cases, and 
a thorough scholar in the civil code, from the fountain 
of which he not unfrequently draws largely, in his 
admmistration of justice. There is certainly not a 
more conscientious man on the judgment seat, or one 
who imparts to it greater dignity or decorum ; but it is 



144 THE FORUM, 

doubtful whether his mode of conducting trials at Nisi 
Prius is wisely adapted, either to the habits or neces- 
sities of a city like Philadelphia. 

The refinements of a metropolitan city would be 
absurd in an obscure county, while the want of them 
would be disgraceful to a city. Justice, it is true, 
is 'the same in all places, but the modes and forms 
of justice are not, and should not, be the same in all 
places. 

Justice abhors hurry; it avoids interference between 
the diiferent departments of duty invoh^ed in any cause. 
A judge has no right, however perspicacious he may be, 
to presume that he understands a case better than the 
counsel, and that, too, before he has half heard it. Nor 
has he any right to restrict counsel to an argument 
of fifteen or twenty minutes, in an address to a jury of 
twelve men, and often of twelve different minds, or dis- 
positions, or interests, in the discussion of facts, the mere 
relation of which would employ twice that time. Judges 
should bear in mind that a manifestation of impatience, 
or an opinion hastily thrown out, is very apt to exercise 
an undue influence over a jury, that nothing can after- 
wards remove or resist. Its effects are often incurable. 
A mere intimation of a judge is so potential that, in 
many cases, it decides a case, and always, as has been 
said, affects its result. 

Justice Lowry does this so smilingly, that no one 
can exactly take offence; but while judges remind 



JUSTICE LOWRY. ]^45 

lawyers that they should not be dissatisfied with the 
discharge of judicial duty, lawyers may remind judges 
of correspondent privileges on the part of the bar. 

A case is decided promptly, — the judge goes home 
to his dmner ; his appetite is not impaired ; he has not 
been compelled to " eat his mutton cold." He knows 
nothing, and cares nothing, for the condition of the ' 
hapless suitor, whose character has been blasted, or 
whose fortune has been destroyed, without a regard for 
the ordinary ceremonials attending upon any decent 
sacrifice. He does not consider the costs that are the 
sequel to the verdict; yet " curses not loud but deep," 
are breathed, under the behef that a fair opportunity 
for a trial has not been afforded. Thus the doctrine is 
lost sight of, as inculcated by Blackstone, that " next 
to the accomplishment of the objects of justice, it is 
desirable that public satisfaction should be regarded." 

It is our duty to say that, while Judge Lowry is a 
great favorite during sessions in banc, and while his judi- 
cial deportment, in other respects, is not only unex- 
ceptionable, but deserving of imitation and commenda- 
tion ; as regards the management or control of a Nisi 
Prius trial, he evinces too great a disposition to direct 
the cause at the outset, without waiting, as he should, 
for its gradual development. He throws his impres- 
sions of facts too much into the jury box, (when he 
permits a case to reach a jury,) instead of restricting 
himself to a charge upon the law ; and, after stating 



146 



THE FORUM. 



tlie facts, leaving their interpretation and application 
to the jury. 

In such circumstances^ a trial by jury is of no use ; 
for either the jury carry out the views of the court 
upon the whole subject submitted to them ; or if they 
are refractory and jealous of their own rights, judicial 
encroachment sooner or later drives them into an oppo- 
site extreme, and in the assumption of power beyond 
what is legitimate, they override law and fact, and 
substitute their impulses for the decree of justice. 

We trust that our commentary, while it discusses, 
will not be considered as unduly extending, our text, 
which is one of interest to the community ; or at all 
events, that it will not be ascribed to any want of per- 
sonal regard for the learned Judge. Upon the con- 
trary, it is founded in the sincerest personal esteem and 
respect, and is intended to call his attention to what, 
if overlooked, might hereafter be a matter of regret to 
himself, as well as to others. 

With these remarks, let us proceed to present some 
of the lineaments of a life, the smooth and gentle cur- 
rent of which, fanned by the popular breath, has at last 
borne him into one of the highest judicial positions in 
the State. 

On the 1st day of January, 1851, he became, by 
election, a judge of the Supreme Court, and drew next 
to the longest term, twelve years. He has now been 
five years on the bench. His reported decisions have 



JUSTICE LOWRY. ^^^ 

been marked by great clearness, brevity, and strength, 
showing that when he chooses to give his mind fully 
to a subject, it is entirely within his comprehension. 

He is an industrious man when the occasion, in his 
opinion, requires industry ; but his mind is of that turn, 
that it is embarrassed by the minute details of a Nisi 
Prius trial, or refuses to apply its energies to subordinate 
points or issues. Nothing that relates to justice is un- 
worthy of regard. The poor have claims as well as 
the rich ; and if the judges of the present day had en- 
joyed the example of Judge Washington, they would 
have found that he was not regulated by the amount 
of the stake, but by the dignity of his position. No- 
thing to him was a trifle that concerned the due 
administration of the law. There he sat, pale and 
abstracted from all the world, an embodiment of jus- 
tice, his features never changing, his voice never heard. 
And we remember to have heard it said of him, and also 
of Justice Patterson, that they respectively sat for days 
in the trial of cases, and never interrupted counsel or 
asked a question. As to their interlocutory comments 
upon the character of the testimony, or the character of 
the case, we defy any man to give an instance of it ! 
But it is to be feared "we ne'er shall look upon their 
like again." 

Judge Lowry, at the time of his elevation to the vSu- 
preme Court, was presiding in the Court of Common 
Pleas of Alleghany. He bore a high reputation for com- 



148 THE FORUM. 

petent knowledge^ great urbanity, and rigid justice. No 
man that has marked his course while upon the bench, 
could entertain the slightest doubt of the purity of his 
intentions, or his extensive legal attainments. His 
personal demeanor during the trial of a cause is un- 
exceptionable. He is composed, prompt, and digni- 
fied. If there is any defect m him, it is attributable, 
perhaps, to too much impetuosity or immaturity of 
judgment; that is to say, entertaining or expressing 
an opinion before he has heard the question fully 
discussed, and sometimes before it is fully stated. 
This is very discouraging to the counsel against whom 
the opinion operates. Lord Thurlow once said to Mr. 
John Scott, (afterwards Lord Eldon), that he (Thurlow) 
never decided in his/(22^or without Jiearing^imL, as his own 
argument sometimes satisfied him that he was wrong. 
But it is a much severer habit to decide against a law- 
yer without hearing him at all, or listening to him 
only after a pre-expressed decision of the case. We 
do not know what may have been the experience of 
others, but we have rarely known a judge to retract an 
opinion upon a point of evidence, which he has once 
volunteered — it is too great a compromise of judicial 
infallibility. 

Then what is to be done? The only way of avoiding 
the evil is to resist it in the beginning. Listen; think 
well before you decide, and you will decide twice as well. 

In banc. Judge Lowry has no superior, but at Nisi 



JUSTICE LOWRY. 149 

Prius, tlie confusion and perplexity of a jury trial seem 
not so favorable to the exercise of his excellent judi- 
cial qualities. This, however, is too common to he 
remarkable. The greatest Nisi Prius judges, like the 
greatest Nisi Prius advocates, are not equally emi- 
nent in the Supreme Court. And the converse of 
the proposition is also true. Lawyers and judges who 
are most distinguished in the Court in banc, often hold 
an unequal position at Nisi Prius. There are but rare 
exceptions to this rule — so rare, indeed, as only to con- 
firm the rule. 

Judge Lowry is apparently some forty-five years 
old, of the middle size, regular and handsome features, 
placid countenance, and of a most amiable temper and 
conciliatory manners. But, with all these fascinations, 
when he once resolves, he is as fixed as Terminus — 
nothing can move him. This is a great quality in a 
judge, if he could always be right ; and at all events, 
it is better than, by perpetual doubts and changes, to 
be always in the wrong. 

But, we are bound to say, there is one point of view 
in which judges from the interior may claim to stand 
excused, for any slight aberrations from our estabhshed 
usage. They have formed their judicial habits by a 
different — we do not mean a defective or inferior — 
standard ; and therefore, rightly viewed, it is more ex- 
traordinary that we all agree so well, than that we 
do not aOTce better. Time, no doubt, will remove all 



J^gQ TEE FORUM. 

impediments between us, and mutual indulgence even- 
tually restore and secure harmony. 

In concluding this notice, we take leave to observe, 
that by the anomalous and chance mode of arranging 
the judiciary, although it was designed that each judge 
should in his turn hold the office of Chief Justice for 
three years, death, and unforeseen contingencies have 
baffled legislative wisdom ; and it so turns out that, 
at the expiration of the chief justiceship of Ellis Lewis, 
Judge Lowry will become Chief Justice for six years — 
that is, for the whole residue of his term. There 
can be no doubt but that he will make an excellent 
presiding officer, as, in addition to his admitted com- 
petency as a lawyer, he is distinguished for his obser- 
vance of system and punctuality, which are indispen- 
sable qualifications for the duties of that high office. 

Considering the recent organization of the Court — the 
difference in the modes of practice — new forms, issues, 
habits, and associations — to say nothing of the exten- 
sive field winch the jurisdiction of the Court embraces, 
it is very questionable whether any five judges in Penn- 
sylvania could have been selected from the community, 
who would have performed these duties more faithfully, 
more satisfactorily, or more creditably to themselves 
and the State, than the present incumbents; and if 
they remain in their present positions until required 
to give place to better men, notwithstanding legislative 
limitation, they will virtually still hold by a life tenure. 



CHAPTEE YIL 

THE DISTRICT COrRT POR THE CITY AND COUNTY OP PHILADELPHIA. 

This tribunal, without reviewing its early Mstory^ 
may be said to liave been, for the last ten years, one 
of the most busy and efficient in the State, sitting, as 
it does, ten months in a year, with a thousand cases on 
the trial list, and nearly two thousand brought to a 
term. The Court was organized by Act of 30th of 
March, 1811. It consisted of a President and two Asso- 
ciate Judges, any one of whom had power to hold the 
Court, with the same power and authority as was vested 
in Courts of Common Pleas for the City and County of 
Philadelphia. The Court was to have no jurisdiction, 
either originally or by appeal, except where the sum in 
controversy should exceed one hundred dollars. Under 
this Act, the Associates were laymen, and so continued 
until the year 1835. On the 28th of March, 1835, an 



2^52 THE FORFM. 

Act was passed providing for the continuance of the 
Court, and also providing for three judges, learned in 
the law, one of whom to be president, and renewing and 
continuing in force so much of the preceding Act, as 
was not inconsistent with the provisions of this Act. 

By the sixth section it is provided, that this Court 
shall hold four terms in the course of a year, to begin 
on the first Monday of June, September, December, 
and March, together with adjourned courts, whenever 
the state of business shall require it. And it further, 
provides that if the number of suits before the Court 
require it, the judges shall sit daily, (Sundays only 
excepted,) during at least nine months in every year. 
And it provides, also, that the determination of no cause 
before said Court shall be delayed beyond the fourth 
term, including that to which the said action was 
brought, if the parties be prepared for trial at the time 
appointed by the said Court ; and if the judges should' 
wilfully delay any cause, suit, or action, in readiness 
for trial aforesaid, it shall constitute a misdemeanor in 
office.* 

The first judges appointed under the law of 1811, 
were Joseph Hemphill, President, and Anthony Sim- 
mons, and Jacob Somers, Associates. 

* Stroud and Briglitly, District Court, p. 242 — edition of 1853. 



THE DISTRICT COURT. ][53 

Judge Hemphni was succeeded in his judicial honors 
by Thomas Sergeant, a profound lawyer, and a scholar 
of most extensive attainments in general literature ; 
and who subsequently, having passed through this and 
various other public trusts, occupied a distinguished 
place for many years on the bench of the Supreme 
Court. 

As has been stated, the District Coin-t was remo- 
delled by the Legislature in 1835, and "three judges 
learned in the law," were then substituted for the 
prior incumbents. The names and the order of ap- 
pointment of those who held their seats from the 
period referred to, down to the date of the amended 
Constitution, will be exhibited hereafter. 

It is not practicable in a work of this kind, whatever 
may have been the deserts of the judges, to make them 
more than subjects of a nominal or cursory notice. Let 
it then suf&ce, that those who have passed away with 
the change and current of time, will, by a grateful pub- 
lic, be remembered, long — ^long after this transient and 
imperfect work and its humble author shall have been 
forgotten. 

Many of those illustrious men — Ingersoll, Levy, 
McKean, Morgan, and others, have gone to then" un- 
earthly rewards ; and their brethren who survive, and 
who must shortly follow them, will, at least, during the 
remnant of their worldly pilgrimage, experience the 
proud solace which arises from contemplating a temple 

VOL. II. — 11 



254 THE FORUM. 

of justice^ of wliicli they were at one time the orna- 
ments and the pillars, and which is still guarded by 
their successors with a vigilance and devotion, com- 
mensurate with the incalculable importance of the 
trust. We come now to a brief notice of the Judges 
of the Court, as it is at present constituted. 



GEORGE SHARSWOOD, L. L. D., 

PRESIDENT JUDGE OF THE DISTRICT COURT FOR THE CITY 
AND COUNTY OF PHILADELPHIA. 

The Honorable George Sharswood was born on the 
7th of July, 1810, and graduated at the University of 
Pennsylvania, on the 31st of July, 1828, with the high- 
est honors, delivering the Greek salutatory, and mani- 
festing a scholarship, of which his unceasing industry 
had given an early earnest. In the month of August, 
of the same year, he became a student in the oflfice of 
Mr. Joseph U. Ingersoll, and after severe application 
to his studies, was admitted to practice on the 5th of 
September, 1831. 

Even after Mr. Sharswood's admission, he still 
blended his classical with his professional duties, 
besides giving some attention to the modern lan- 
guages, and it may be truly observed of him, that it 
has seldom happened that such young shoulders bore 
so wise a head. 



^GEORGE SHARSWOOD, L. L. D. ^55 

He was not deficient in genius, but Ms great quality 
consisted in rigid and indefatigable labor. He was 
a model for a student. Always thoughtful, yet always 
cheerful ; modest and retiring in his manners, yet in 
a moment of exigency not deficient in just reliance 
upon himself. We do not think he could ever have 
been an effective advocate. The turn of his mind 
was too tranquil to enjoy or to endure the tumult, 
agitation, and excitement of jury trials. But in an 
argument to the Court in banc, upon a point of law, 
few men of his years would have been his equal — 
cool, calm and collected, he had full control of that 
abundant stock of knowledge which untiring perse- 
verance and industry had enabled him to accumulate. 

After remaining at the bar some five years, with 
about the usual share of professional business, but with 
bright hopes clustering round him, he was elected to the 
Legislature on the 10th of October, 1837, where, it is 
sufficient to say, that he justified the most sanguine 
hopes and expectations of his constituents. On the 
9th of October, 1838, he became one of the select 
council, and on the 29th of June, 1841, was appointed 
secretary of the investigating committee of the stock- 
holders of the Bank of the United States. On the 12th 
of October, 1841, he was elected again to the Legisla- 
ture, and continued in that body by another election, 
on the 11th of October, 1842. Scarcely had his legis- 
lative services terminated, when, on the 8th of April, in 



156 THE FORUM. 

the year 1845, he received the apjoointment of Judge of 
the District Court for the City and County of Phila- 
delphia, and on the 1st of February, in the year 
eighteen hundred and forty-eight, became its Presi- 
dent. On the 14th of October, 1851, under the new 
constitution, he was elected by a large majority to the 
same judicial position, which he had previously held 
from the executive and senate of the State. He was 
commissioned on the 1st of December, 1851. 

In all those varied, and highly honorable and re- 
sponsible employments, it may be justly said, that he 
manifested the most abundant capacity and fitness for 
the duties imposed upon him. But he more espe- 
cially shone in his judicial qualifications. Take him 
for all in all, at his time of life, no bench in Pennsyl- 
vania has borne a more unblemished, more compe- 
tent, or more exemplary incumbent. He cannot be 
said to be a man of refined and fascinating manners ; 
his close studies and constant occupation would forbid 
that, but he is a man of kind, liberal, and honorable 
feelings, just such a man as you might suppose was 
born to be a judge; and if he holds out as he has 
begun, and Heaven and his constituents continue him 
to his " three-score years and ten," we are mistaken, 
or he win furnish the best practical proof of the folly 
of legislating judges out of office, at the expiration of 
sixty years. 

Since his presidency in the District Court, Judge 



GEORGE SHARSWOOD, L.L.D. ^57 

Sharswood lias been chosen Professor of Law in tlie 
Pennsylvania University, where he is an invaluable ac- 
quisition. Apart from this duty, he is engaged in deliver- 
ing a course of elaborate lectures before the Commercial 
Institute. And when it is remembered that the court 
in which he presides sits ten months in a year, and is 
continuously and laboriously occupied during all that 
time, in every diversity of trials, certainly no better 
commentary can be required upon his exhaustless pa- 
tience and energy of character. 

But to glance from the mental to the personal — 
Judge Sharswood is about five feet ten inches high, 
with a slight stoop of the shoulders, attributable, pro- 
bably, to his studious pursuits throughout life. lie 
has^a benevolent face, an even temper, great patience, 
and that — without which everything else is nothing — 
uncompromismg honesty. The honesty of a judge, 
however, is hardly necessary to be referred to, as 
without it, no man is to be considered a judge. He is 
only a pageant in the temple of justice. 

All this we have said with entire frankness and sin- 
cerity, and are prepared to stand by. Nay, it is the 
voice of the entire bar, and we may be excused, though 
it partakes of something bordering upon a rebuke, in 
saying that there is only one defect in Judge Shars- 
wood's judicial manner, and that possibly arises from 
Judge Washington's having departed from the bench 
before Judge Sharswood came to the bar. Judge 



158 THE FORUM. 

Washington, never used a mallet or a gavel, or com- 
manded " silence !" or directed the- members of the bar 
or the by-standers to take their seats. In departing 
from this example, we think Judge Sharswood errs. 
These errors, however, may be attributable to the na- 
ture of the business, or may have been inherited from 
some of his official predecessors. Be this as it may, 
they are rather formal than substantial matters of ob- 
jection — mere motes in a sunbeam, offending the eye, 
without diminishing the light. 

Judge Sharswood may be cited in support of our 
theory, that judges — all other qualifications being 
equal — taken from the bar before they have been ex- 
tensively engaged in practice, generally discharge their 
duties more satisfactorily than those who are hack- 
neyed in litigation, and therefore take partial or preju- 
diced views of a case. Unless the opposite sides of the 
issue exhibit great inequality in merit and strength, 
we defy any man to perceive, from the deportment 
of the judge, to what result his mind inchnes. This is 
a great virtue in a judicial officer — nothing is so unbe- 
coming in authority, as to descend from its high call- 
ing into the arena of professional degiadiation, and ad- 
vance gratuitous opinions, and join in a conflict between 
out-posts, before the mind entirely grasps the merits 
of the controversy. Counsel may be less observant 
of what they say or do, but a judge should permit no 
word to escape his lips during the progress of a trial, 



GEORGE M. STROUD, L.L.D. ][59 

that may tend to bias the jury, or throw reproach upon 
one party or the other. Words, as we have elsewhere 
said, are things, and judicial words are very operative, 
if not controlling things, upon the minds of the 
"sworn twelve," who, having for the most part, but 
little light in themselves, look anxiously for the least 
glimmering of it that may be shed from the bench, 
and sometimes convert that light into darkness. 

Judge Sharswood puts his cases, of course, very 
fairly to a jury; he seldom intrenches upon their 
rights to determine upon the facts, and when he 
charges upon the law, he does it with great clearness, 
precision, and cogency, and so as to be comprehended 
by any man of the most ordinary intelligence. His 
thoughts are not only perspicuous, but the language in 
which they are clothed is so plain and unaffected, as 
to prevent all equivocation or misapprehension. 



GEORGE M. STROUD, L.L.D., 

JUDGE OF THE DISTRICT COURT FOR THE CITY AND COUNTY 
OF PHILADELPHIA. 

It is now our agreeable duty to direct attention to 
a faint outline of the judicial life of one who, for recti- 
tude of purpose, unquestioned competency, and an 



250 THE FORUM. 

industry that never flags, has no superior, and but 
few equals, in the judicial history of this State. We 
refer to the Hon. George M. Stroud, who, on the oOth 
of March, 1835, was first appointed a Judge of the 
District Court. 

The only objection that has ever been urged against 
him, (and what judge can escape objections of some 
sort,) was in the earlier part of his career, when he 
was considered too rigid, too unbending, too stern, 
perhaps, in the administration of the law. In addi- 
tion to this, it was said, he pressed the business 
through too rapidly to be entirely consistent at all 
times with the comfort of counsel, or the convenience 
of suitors. We will not say of him, as was said of 
Lord EUenborough, that " he drove directly onward to 
the just end of a cause, like a mighty elephant in a forest, 
trampling down the low brushwood under his feet, and 
tearing away all the minor branches that obstructed 
his impetuous progress," — but this we may say, that 
he manifested an industry, activity, and energy, that 
was at that time unusual, and at no time has been sur- 
passed. A reason for this, however, is to be found in 
an overcharged trial list gradually accumulating, and 
which was Hkely in a few years to become entirely 
unmanageable, unless the evil should be forestalled by 
extraordinary effort. The Judge set out with the 
notion that every case on the list was entitled to be 
tried, however young, and that the older cases should 



GEORGE M. STROUD, L L.D. ^g^ 

be held to strict rule, and if not ready, either he 
forced on, continued, or nonsuited. This view seemed 
to coincide with the policy of the legislature, as ex- 
pressed in the act of assembly constituting the Court, 
which requires that every suit upon the list shall be 
heard, if the parties be ready, within four terms, in- 
cluding the term to which it was instituted. This, of 
course, being a new system, for a time seemed to ope- 
rate with severity, and led to some complaints. But 
the moment the bar were accustomed to it, and realized 
its advantages, they generally became reconciled and 
satisfied. 

After the expiration of ten years, (his first term of 
service,) Judge Stroud returned to the bar, and re- 
sumed practice, in which he continued for about three 
years, when he was again appointed to the post which 
he had previously held. And on the first day of De- 
cember, 1851, having been elected under the Amend- 
ment of the Constitution already referred to, his com- 
mission was renewed. From that time, the Hst or 
calendar having been diminished by the industry of 
the Court, the progress of business was less impeded, 
and the judges had an opportunity of affording greater 
indulgence. And it is doubtful whether there has 
ever been a court in the City of Philadelphia, the 
judges of which enjoyed a higher consideration or 
regard, than the judges of the District Court. So 
equal are they in the estimation of the profession and 



]^Q2 THE FORUM. 

community, that, strange as it may seem, with the 
variety of cases and laws belonging to a multifarious 
profession, there seems to be no choice or preference 
in respect to the judge before whom questions shall 
be tried. We regret to say, it is not so in many 
other courts with which we are acquainted. 

But passing from this solitary exception, (of running 
through the issue list,) which was alike applicable to 
Judge Sharswood, let us proceed with the more imme- 
diate duty of this chapter. We may, however, be al- 
lowed in passing to say, that as regards Judge Hare, 
who came upon the bench after the list had been re- 
duced into some order and control, there has been al- 
ways exhibited a spmt of reasonable indulgence, and a 
marked courtesy towards the bar. Both of them, as we 
conceive, entirely compatible with true dignity and just 
self-respect. 

Judge Stroud is a scion of a Quaker stock. He 
was born in 1793, at Stroudsburg, where his parents 
had resided for many years. Having received the ru- 
diments of his education at the place of liis birth, at 
the age of fifteen, he entered Princeton college, where, 
after close appHcation to his collegiate course, he gra- 
duated with distinguished honor at the age of nineteen. 

In 1816, he became a student in the office of Judge 
Hallowell, a friend of his father, where he applied him- 
self closely, and having run his course, was admitted 
to practice on the 28th of June, 1819, and at once. 



GEORGE M. STROUD, L.L.D. 2.63 

under very favorable auspices, commenced his profes- 
sional career. 

After liis admission, lie was united in marriage 
with the daughter of his preceptor. At that time 
Judge HalloweU having been appointed to the bench, 
of course much of his business and his influence 
passed to his son-in-law. He, therefore, in a few years, 
had an adequate, though not what would be called an 
extensive business. Had he declined office, and per- 
severed in his professional career, from his energy, 
learning, and integrity, he could scarcely have failed 
to rank with the ablest and most successful members 
of the bar. 

He was not only well-founded in the principles of 
the law, but he was unusually familiar with decided 
cases, and his memory was so clear and ready as to 
enable him to refer to them with the greatest accuracy, 
and to apply them with the most conclusive effect. 
His quickness of apprehension was another remarkable 
quality. But we doubt whether it is the most desirable 
quality in a judge ; as it leads to anticipation, to which 
patiently awaiting the regular development of a cause, 
is much to be preferred. 

Judge Stroud's temper in early life was somewhat 
quick, but in the progress of years, in the language 
of Socrates, divine philosophy, or rather religion, had 
softened and cured this infirmity. And at the time at 
which we write, few men have more command over 



]_g4 THE FORUxM. 

their passions, and no one guards them more watch- 
fully, or repents them more sincerely, than the worthy 
subject of this brief sketch. 

It need hardly be stated, that he is a man of 
the most kind and generous sympathies and feelings. 
The charity of his nature is not passive but active, 
quietly seeking for its object, without waiting to be 
sought — and not, in the language of the Gospel, "let- 
ting his left hand know what his right hand doeth." 

Judge Stroud is now in the sixty-thii'd year of his 
age, five feet ten inches high, of an active and power- 
ful frame, capable of bearing great mental and physical 
labor, and with an energy that never deserts him in any 
extremity. 

Notwithstanding his close employment upon the 
bench, he has prepared and published several editions 
of the Digests of the Laws of Pennsylvania, with co- 
pious notes of the judicial decisions relating to them. 

He also, before his appointment to the bench, pub- 
lished a work upon slavery, presenting, in a volume of 
some three hundred pages, a condensed and most per- 
spicuous and systematic analysis of the laws of all the 
States in the Union, in relation to this most interesting 
and agitating subject. The work also contained most 
impressive and judicious views of the entire subject, 
with appropriate illustrations, derived from judicial de- 
cisions, from the adoption of the Constitution down to 
the time of its issuing from the press. 



J. I. CLARK HARE, L. L. D. \Q^ 

The elder Mr. Rawle, in speaking of this book, many- 
years ago, shortly after its publication, expressed the 
highest approbation of its object, and of the masterly 
manner and excellent system that it displayed. 

The first edition of this treatise having been ex- 
hausted, the judge, during the present year, has pub- 
lished a new edition, which will be most acceptable and 
valuable, inasmuch as the increase of States, the change 
in legislation, and especially the late Fugitive Slave 
Law, and the course of decisions to which it has given 
rise, have rendered necessary considerable alteration 
in, and additions to, the original work. 



J. I. CLARK HARE, L.L.D., 

Is, with one or two exceptions, the youngest judge 
probably in Pennsylvania — certainly in the City of 
Philadelphia. His ancestry are perfectly well known 
and universally respected. 

Judge Hare was born in the City of Philadelphia, 
in October, 1816. He is therefore at this time forty 
years of age. He graduated with distinction at the 
University of Pennsylvania. 

After passing through the usual studies, he was ad- 



■j^QQ THE FOUUM. 

mitted to practice on the 9tli of September, 1841,* 
having read law with WiUiam M. Meredith, one of the 
ablest lawyers in the Union. 

From the influence of an extensive and powerful 
family, but more especially from his. modest and con- 
ciliating manners, and admitted and admired abilities, 
he no doubt would have been entkely successful in his 
professional career. 

Those fruitless days which are passed between the 
time of admission and that of actual professional em- 
ployment, were not allowed to pass by unimproved. Mr. 
Hare devoted himself to editing Smith's Leading Cases, 
and various other valuable modern publications. By 
the research thus required, he enlarged his store of legal 
knowledge, and secured to himself an enviable reputa- 
tion for learmng among his cotemporaries. 

Soon after admission, he married a daughter of 
Horace Binney, and such was the favor he had ac- 
quired by his learnmg, urbanity and courtesy of de- 
meanor, that on the 14th of October, 1851, he was 
placed in nomination upon the whig ticket for Judge of 
the District Court, for the City and County of Phila- 
delphia, and elected by a large but not unexpected 
majority. He is therefore a judge for ten years, from 
December, 1851. 

* For nearly four years after liis collegiate course he was engaged in 
the study of chemistry, under his distinguished father, (Professor Hare,) 
and in pursuance of that study, was absent about two years in Europe. 



J. I. CLARK HARE, L.L.D. ]^g7 

Unsolicited advice is seldom welcome ; — nay, it 
mnj be deemed obtrusive ; but we may say, it is at 
least questionable, whether the prospects he had be- 
fore him of advancement at the bar, were not too rea- 
dily relmquished for a position on the bench. 

It should be remembered, we have had sad exam- 
ples that no man can withdraw from the bar for ten 
years, even for the bench, and ever retrieve the posi- 
tion which he lost. 

No man quahfied to be distinguished, ever Left the 
bar and returned to it with any rational hope of suc- 
cess. There is no such instance. A coarse man, with 
little learning and less modesty, may, perhaps, force 
himself into a position of some notoriety; but noto- 
riety is not fame ; and presumption is no evidence of 
permanent success. Depend upon it, the law is a 
jealous mistress, claims all your attentions, and will 
allow no division of favors. 

We have spoken of Judge Hare's social manners — 
his judicial deportment is equally entitled to respect. 
He is patient, indulgent, and attentive, and possesses one 
rare quahty of a judge, (though not deemed sufficiently 
important to be generally imitated,) that of fixing his 
eye and mind upon the case as it progresses. Whether 
a judge listens or not, he should seei7i to hsten — he is 
the centre figure of the painting, and it is neither con- 
sistent with any rule of art or propriety, that while 
others in the group are looking at him, he should 



]_gg THE FORUM. 

direct his attention to foreign matters. It was a joke 
of Judge Gibson, though worthy of remembrance, when 
he said, in advanced hfe, that he had reached the acme 
of his judicial ambition, in being able to fix his eye 
upon a dull speaker with apparent attention, while his 
thoughts were employed with something more agree- 
able. 

Judge Hare is a man of very prepossessing per- 
sonal appearance, with good features, and eyes of great 
brilliancy and intelligence. He is about five feet 
seven inches high, of slender frame, a sanguine tem- 
perament, and considerable mental and physical ac- 
tivity. From his nice perceptions and capacity, and 
the companionship which he enjoys on the bench, 
with two of the most eminent judges of the time, 
together with his unexceptionable manners, we may 
confidently expect, that in a few years, he will fairly 
challenge a comparison with any judge in the State. 
The character of a gentleman, though not indispensa- 
ble to the office of a judge, is a very desirable accom- 
paniment, as the lustre of both is increased by recipro- 
cal reflection. 



CHAPTEE YIII. 

THE JUDGES Of THE COURT OP COMMON PLEAS. 

The first Judge of the Court of Common Pleas^, was 
Benjamin Chew, who was admitted to the bar in Sep- 
tember, 1746, appointed President of Court of Com- 
mon Pleas, and succeeded by John Coxe. Mr. Coxe 
was admitted in 1780, and held a highly respectable 
position as a lawyer and a judge. Upon his resigna- 
tion, he was succeeded by Jacob Rush, the brother of 
Dr. Benjamin Bush, a most distinguished physician 
and writer, and one of the signers of the Declaration 
of Independence. 

Judge Bush was a graduate of Princeton, and of the 
same class with James Waddell, the bhnd clergyman, 
whose eloquence has been so highly eulogized by 
Attorney General Wirt, in his " British Spy." 

He was a man of great ability, and great firnmess 
and decision of character. He was also an eloquent 
man. Perhaps there are few specimens of judicial elo- 

VOL. II. — 12 * 



IT'O THE FORUM. 

quence more impressive than those which he delivered 
during his occupation of the bench. An accurate 
idea of his style may readily be formed from an ex- 
tract from his charge to the Grand Jury, in 1808, and 
his sentence pronounced upon Richard Smith, for the 
murder of Carson, in 1816. We refer as much to the 
high moral tone of his productions, as to their literary 
and intellectual power. But his own language will 
speak better for him than anything that could be 
said by us. Some of his early literary essays were 
ascribed to Dr. Franklin, and for their terseness and 
clearness were worthy of him. Our business, how- 
ever, relates to his judicial compositions, from which, 
at random, we take the following abstract from a 
charge to the Grand Jury, respecting horse-racing, 
1808 :— 



" Horse-racing is attended with, many evils, wliicli seem inter- 
woven in its very nature. It always collects a number of idle per- 
sons, and idle persons are liable to every temptation. A race-ground 
is a theatre of dissipation, and the hot-bed of every vice. Many 
people go there from harmless curiosity, who do not return as in- 
nocent as they went. The spirit of gambling is infectious, and 
often seizes on persons of ardent and impetuous tempers, who being 
once caught in the toils, are seldom able to extricate themselves 
from its fascinating chains. In a country where horse-racing is 
contrary to law, the destruction of private property is the natural 
consequence. It therefore uniformly happens that the grain, grass, 
and fences of those who live in the neighborhood are damaged, or 



THE COURT OF COMMON PLEAS. \'Jl 

destroyed by an unknown crowd, against wliom it is impossible to 
obtain redress. 

" The report of a horse-race spreads far and wide, without the 
aid of a newspaper, and is the well-known signal for collecting to- 
gether from all parts of the community, sharpers and gamblers of 
every character and description. Thither they repair as to their 
native elements, to practise all the deceptive arts of their profes- 
sion with greater latitude and success. Here our youth — the grow- 
ing hope of their country — and unwary old age, are equally a prey 
to the prowling sharper : here, excess, riot, and debauchery of every 
kind predominate. Here, too, the sacred name of the Deity is 
universally profaned, while oaths and execrations rend the very 
air, and resound from every quarter. In short, it would be diffi- 
cult, if not impossible, to name a spot upon the face of the earth, 
which combines so many means of destroying the virtue and mo- 
rality of a country, as a horse-race.'' 

The sentence in the case of Richard Smith, in 1816, 
is of a far more solemn and impressive character, 
and furnishes stronger denotements of the mental and 
moral quahties of this distinguished judge and most 
estimable man : — 

" As your continuance in this world will be but for a short time, 
it becomes you seriously to reflect on the world of spirits, into 
which you will soon be launched. Dream not, I beseech yoti, of 
annihilation, or that death is an eternal sleep. The more you in- 
dulge in such unfounded speculations, the greater will be your 
disappointment and horror, when you wake in the eternal world. 

"You have received life, not upon your own terms, but upon the 
terms of Him who gave it. With the existence of every moral 



272 THE FORUM. 

agent, God has seen fit inseparably to connect both immortality 
and responsibility. 

"It is not in your power, however it may consist both with your 
wishes and your interest, to cease to he, or to divest yourself of re- 
sponsibility. God is represented in the Scriptures, as an infinitely 
wise and just being ; but we could scarcely conceive of Him in 
that character, if a wicked man, after committing innumerable 
crimes and murders, were permitted to escape punishment, by 
ceasing to exist. 

''It is, therefore, both wisdom and duty, to prepare for the 
change in your mode of existence, that is rapidly approaching. 

" Life and immortality are brought to light by the gospel. In 
this precious volume only, is discovered a true account of the fall 
and depravity of man, and of his elevation to happiness through 
the atoning blood of the Son of God. Here, and here alone, a 
soul, lost and bewildered in a maze of guilt, can find a clue to 
guide him to the day-spring from on high — the Saviour of sinners. 

" The principal feature in this astonishing display of infinite 
wisdom and goodness, is, that it opens a door for the most aban- 
doned sinners to return through the means of repentance. 

" Murderers have been pardoned j therefore ?/ow maybe pardoned, 
in the case of your repentance, and washed from your sins in the 
blood of Jesus, that cleanseth from all sin. To this blood you 
must apply, if you wish to escape the regions of perpetual sorrow 
and despair. 

" Though it be true, the gospel has opened a door for a repent- 
ing and returning sinner, it is equally true, he has no right to 
expect to be pardoned, unless he uses his best endeavors ; which 
there is reason to believe God will bless with success, as they are 
the means appointed by himself. 

" I therefore advise you to strive to enter in at the straight gate. 
Double diligence, nay, ten-fold diligence, is necessary in your 
alarming situation. You have but a short time to live, and a great 



THE COURT OF COMMON PLEAS. ^73 

work to accomplisli in the space of a few weeks. It becomes you, 
therefore, to work out your salvation with, fear and trembling, for 
it is God that works in you, to will and to do, of his own good 
pleasure. 

" You are a young man, cut off by vice in the morning of your 
days. Your sun has scarcely risen before it will set — not, I hope, 
under shades of everlasting night, but that in the morning of the 
resurrection you may shine in robes of innocence, purchased by 
the blood of the Lamb. 

" Now to the grace, mercy, and goodness of Grod, I commend 
you ; and conclude with this single request, that immediately on 
your return to prison, you send for some pious divine, to pray with 
you and for you, and to assist you in preparing for the awful change 
that soon awaits you. 

" The sentence which the law prescribes for murder in the first 
degree, and the court awards, is this : 

" That you be taken from hence, to the jail of the City and 
County of Philadelphia, from whence you came, and from thence 
to the place of execution, and to be there hanged by the neck, 
until you are dead, and may Grod have mercy upon your soul." 



Judge Rush's charges to the jury, generally, and his 
legal decisions, were marked by soundness of principle 
and closeness of reason.* Having been a Judge of the 
Supreme Court and of the High Court of Errors and 
Appeal, he never appeared to be satisfied with his 
position in the Common Pleas; yet, his uprightness 
of conduct and unquestionable abilities, always secured 

* Vide charges upon moral and religious subjects. Published in 1803. 
(Philadelphia Library.) 



]^74 THE FORUM. 

to liim the respect and confidence, if not the attach- 
ment, of his Associates, the members of the bar, and 
the entire community. He was one of the gentlemen 
of the old school, plain in his attire, unobtrusive in 
his deportment; but while observant of his duties 
towards others, never forgetful of the respect to which 
he himself was justly entitled. He died in the month 
of January, 1820, and was succeeded in the ojQ5ce of 
President of the Court of Common Pleas, by John 
Hallowell, a member of the Society of Friends, an 
eminent lawyer, and for a long time in extensive and 
profitable business. 

It was a matter of great gratification to the bar, 
that Judge Hallowell should accept of this place, and 
as long as he retained it he was totally unexception- 
able. He was not, however, a man of much activity 
or industry, and as at the time referred to, his Asso- 
ciates were not learned in the law, the attendance of 
the President was therefore always required. This 
imposed upon him the necessity for unremitted atten- 
tion to business, and rendered his situation rather irk- 
some than agreeable. 

On the 22d day of April, 1825, Judge Hallowell 
was appointed Judge of the District Court, and was 
succeeded by Edward King, (who had been admitted 
to practice in 1816,) as President of the Common Pleas. 

Mr. King's political party had for some time been 
desirous of placing him upon the bench, and upon the 



THE COURT OF COMMON PLEAS. ^75 

expiration of tlie term of Judge Morgan, of the Dis- 
trict Court, King became an applicant for the vacant 
situation. 

Governor Shultze hesitated about giving him that 
appointment, though much urged, but he seemed to 
owe it to his political friends, and there was no other 
vacancy. It was at last suggested, that Judge Hal- 
loweU would probably accept the limited term in the 
District Court, and resign his life appointment in the 
Common Pleas. Judge Hallo well was not exactly 
satisfied, as has been observed, with his position, and 
he therefore readily concurred in the arrangement. 
He was transferred accordingly, and thus an opening 
was made for Judge King, to which he was forthwith 
elevated. 

Judge King was at this time a man of but Httle note 
at the bar, of a defective literary education, but a good 
lawyer, of a strong and energetic mind, and of great ap- 
plication and capacity. His appointment was not gene- 
rally satisfactory. It was considered as the resiilt 
of political influence, and was decried by one party, 
and not very strenuously supported by the other; 
and yet he proved, take him for all in all, per- 
haps the best judge that ever occupied that bench 
since it was first created, so far as regarded its crimi- 
nal jurisdiction, and at least equal to any in the civil 
department of his judicial duties. His charges to the 
jury exhibited great perspicuity and strength, and his 



176 THE FORUM. 

written opinions, during a period of more than twenty 
years, were indicative of much research, discrimination, 
and power. If his firmness had been equal to his legal 
learning, certainlj^ no judge of the Common Pleas in 
Pennsylvania would have been entitled to a loftier 
position than he richly merited ; indeed, it is doubtful 
whether there would have been his equal. As a crimi- 
nal lawyer, he had no judicial competitor. The great- 
est objection to him, however, was his want of gravity 
on the bench. He never seemed to aim at any. His 
intercourse with his criers, and tipstaves, and reporters 
for the papers, was just as unreserved and familiar as 
with his nearest friends, and his example in these re- 
spects, long continued, has in its influence much im- 
paired judicial propriety and dignity. In other words, 
his mantle has fallen upon some of his successors. 

Though not rough, or eccentric, he was often found 
carelessly lounging in his chair; reading the news- 
papers ; engaged in conversation with his associates, in 
the midst of an argument, and displajdng the imperfec- 
tions arising from a neglected training in early life. 
He improved, however, in his official manners, as time 
progressed, and when he was superseded under the 
new constitution, rendering the judiciary elective, he 
bore with him a reputation which great men might 
envy, and no man could despise or contemn. 

His early literary education, as has been said, was 
defective ; but such was his industry and capacity, that, 



THE COURT OF COMMON PLEAS. ^77 

although a critic might detect blemishes in his style, 
th-ey were much more than counterbalanced by the clear- 
ness, nervousness, learning, and wisdom of his opinions. 
Of him it may be truly said, he has " done the State some 
service," and he will be remembered for his abihties 
long after his trivial faults are forgotten. 

We have spoken thus freely, but with entire respect. 
Not to describe men as they are, is not to describe them 
at all; and if they should exhibit some few venial imper- 
fections, which is the lot of man, like flaws or specks 
on the diamond, they are lost in its general brilliancy 
and lustre. 

During Judge King's presidency, for some years, 
Archibald Eandall, whom we have already cursorily 
glanced at, was one of his associates, and continu- 
ed so until appointed judge of the District Court 
of the United States, in place of Judge Hopkinson. 
Judge Randall was remarkable for tliis, that, with no 
great legal proficiency, and with scanty literary attain- 
ments, but with very modest deportment, he was al- 
ways a favorite. It mattered not to what post he 
was appointed, he was always quite equal to it, and 
never one jot above it. His education was limited, but 
his good sense abundant. He never amazed you by 
his wisdom, nor shocked you by his folly. The just 
medium was his highest and safest distinction. He 
enjoyed the confidence of all, without ever having 
justly forfeited the kind regards of any. Upon Judge 



178 ^2^ FORUM. 

Randall's resignation, his place was filled by James 
CamjDbell, the present Post-Master-General of the 
United States. 

J. EiCHTEE JoA^ES was the other Associate. To say 
he was a conscientious judge, is but to say what may 
be said of perhaps every judge that Pennsylvania 
has known. His literary education was superior to 
that of Judge Randall, but not so his scientific accom- 
plishments. He was certainly not deficient in decision 
of character, or in that industry and integrity, which 
make decision virtue. 

Finally, in the year 1851, under the new constitu- 
tion, an election took place. Judge Parsons had re- 
signed. Judge King and Judge Campbell were dropped, 
and Oswald Thompson, Wilham D. Kelly, and Joseph 
Allison, were then elected, and now constitute the 
Judges of the Court of Common Pleas. 

We are not, as has been shown, in favor of an elec- 
tive judiciary. Life appointments are more promotive 
of the objects and character of justice, and the well- 
being of the citizens. Judges should not only be honest, 
but free from suspicion. Nay, more — free from tempta- 
tion. Whoever is hable to temptation in a public of&ce, 
particularly a judicial ofi&ce, is subject to suspicion; 
unjust suspicion, if you please, but still, suspicion. He 
is approached in a thousand ways, that he is the last 
to perceive, and which if he did perceive, he would be 
the last to encourage. Pohtical, national, religious. 



THE COURT OF COMMON PLEAS. ^^79 

personal partiality or prejudice, are all invoked or ap- 
pealed to. Say the judge never swerves from the law ; 
still there is a vast deal left to judicial discretion, and 
judicial discretion is subject to be influenced involun- 
tarily by favoritism or antipathy. 

There is not a judge now upon the bench, in this 
State, that we might not be happy if he enjoyed a life 
tenure. Honest, capable, and upright men, conscien- 
tiously faithful to their high trusts, and yet subject, 
every ten or fifteen years, to the influence of party 
pohtics — to be dragged into the popular arena, and 
compelled, as it were, to fight or to fawn, for a con- 
tinuance in their posts. Is this creditable? Is it tole- 
rable ? 

In these conflicts, one judge is assailed because he 
drmks a glass of wine ; another, because he does not ; 
a third, because he is a federalist ; a fourth, because he 
is a democrat ; a fifth, because he is of foreign birth ; a 
sixth, because he is a native ; a seventh, because he is 
a Roman Cathohc; an eighth, because he is a Pro- 
testant ; a ninth, because he is for freedom ; a tenth, 
because he is for slavery ; an eleventh, because he de- 
cided this way, in the case of Den v. Fen ; a twelfth, 
because he decided another way, in Doe v. Roe ; and 
a thirteenth, because he decided no way — and having 
no opinion of his own, no one has any opinion of him. 

Now there is a baker's dozen of objections, and each 
one is a fair representative of a thousand others. In 



180 THE FORUM. 

theii^ accumulation, " their name is legion." What must 
be the effect of this state of things, upon the bench, 
the bar, and the entire community, we all may think, 
but none may tell. 

But notwithstanding these objections, the first ex- 
periment made under the new constitution has been 
strongly recommended to favor by the deportment of 
the judges, in all the courts, and by none more than 
by the exemplary gentleman and judge to whom we 
now invite attention. 



OSWALD THOMPSON, L.L.D. 

Among the most judicious selections of judges by the 
people, was that of Judge Thompson, the President 
Judge of the Common Pleas. He was born in the 
city of Philadelphia, is now forty-six years of age, 
of slender and delicate, but active frame, about five 
feet seven inches high, with an intelligent and ami- 
able face, and highly agTeeable personal and judicial 
manners. He graduated at Nassau Hall, Princeton, 
in 1828, studied law with Joseph R. IngersoU, was 
admitted to the bar in 1832, and was commissioned as 
President Judge of the First Judicial District in De- 



OSWALD THOMPSON, L.L.D. Jg]^ 

cember, 1851. He is a well-read lawyer, and without 
ever having enjoyed a very large practice, lie had suffi- 
cient professional employment to stimulate his energies, 
and to quahfy him better for a judicial station than if 
he had been habitually engaged, day after day, in tak- 
ing ex parte views of legal subjects, and sometimes in 
substituting his professional bias for his impartial judg- 
ment. We humbly differ from Lord Campbell, as we 
have previously intimated, in the opinion expressed in 
in his views of the Chief Justices, that eminent advo- 
cates have generally proved to be the most eminent 
judges. Our impression and experience teach us that 
judges taken from among the more successful and bril- 
liant members of the bar, carry with them for the 
most part, forensic rather than judicial qualifications 
and tendencies, and that they consequently, though un- 
consciously, often take sides on the bench, as they have 
been accustomed to do at the bar. 

It is not wonderful, that it should therefore so 
rarely happen, that powerful advocates make distin- 
guished judges. Most of those who have acquired 
great judicial fame were men who were either placed 
upon the bench before they had figured long in the 
practical concerns of the bar, or, in some instances, 
before they held any prominent position at the bar. 
Lord Mansfield was, perhaps, an exception. Judges 
Washington, C. J. Tilghman, Chief Justice M'Kean, 
Chief Justice Gibson, were never eminent as advo- 



232 THE FORUM. 

cates ; nor was Judge King^ of the Common Pleas, who 
finally obtained great respectability on the bench. 
Judges Wilson, IngersoU, Levy, were barristers of the 
highest distinction, but were very unequal as judges ; 
and there are numerous other instances that could be 
quoted to the same effect. 

The reason would seem to be this, that the acute- 
ness of a lawyer, in vindicating his client's cause, and 
searching out the actual or imaginary defects of his 
adversary, particularly when the practice is long con- 
tinued, becomes habitual, and destroys the just equili- 
brium of the mind, and impairs or perverts the opera- 
tions of the judgment. This notion is further strength- 
ened by the fact, that it also generally happens, that 
where a judge, has resigned, or lost his post after 
long service, he never seems to manifest any available 
qualities as an advocate. His didactic and judicial 
manner remain, and he would seem rather to decide 
than convince — so that neither judges nor advocates 
improve by a change of place. 

No man could preserve the impartial equilibrium of 
which we have spoken more admirably than Judge 
Thompson. The manner of delivering his charges and 
opinions is mild, gentle, and impressive, and his de- 
portment is not only unexceptionable, but most lauda- 
ble. He has, we think, done more to reconcile the 
reflecting public to the elective judiciary, than could 
have been done by a majority of ten thousand votes. 



WILLIAM D. KELLY. ]^g3 

He has one qualityj however, said by Burke to be the 
usual concomitant of greatness, and which no doubt 
springs from the strict purity of his motives, and the 
sincerity of his opinions, and that is — obstinacy, or, as 
it is called in more courtly language, firmness. He 
generally adheres to his opinions, certainly from no 
selfishness or want of magnanimity, but because he 
firmly believes those opinions to be right. And although 
Lord Mansfield has observed that, " It is much more 
magnanimous to retract than to persist in error," let 
us say what we may, a proper tenacity of opinion is 
assuredly preferable to a vibratory, vacillating judge, 
who changes his mind as freely and as frequently as 
his apparel, and with much less regard for appearances. 
A learned though eccentric judge of our own State, has 
well said, " That obstinacy and firmness spring from 
the same root — it is obstinacy when the cause is bad — 
firmness when it is good ;" and with this understand- 
ing, in its application to Judge Thompson, let us call it 
firmness. 



WILLIAM D. KELLY, 

BOEN, APRIL, 1814— ELECTED, 1851. 

William D. Kelly was born in the Northern Liber- 
ties of Philadelphia, in April, 1814. Having read law 



Ig4 THE FORUM. 

for the usual time, with James Page, a prominent 
member of the bar, he was admitted to practice on 
the 17th of April, 1841, and became deputy prose- 
cuting counsel, in connection with Francis I. Wharton, 
under Attorney General Kane, in 1845. He was 
commissioned as an Associate Judge of the Court 
of Common Pleas, in March, 1847; and was subse- 
quently elected by a large majority to the same judi- 
cial post, under the new constitution. 

Judge Kelly is among the younger judges of the 
State — we mean in years. Plis early education was 
exceedingly limited, but he was endowed with fine 
natural parts ; and possessed of an energy which no 
ordinary impediment could resist, and an ambition that 
difficulties only served to strengthen. 

He was for some years before he reached maturity, 
placed at a mechanical trade, which, to his credit be 
it spoken, in his more elevated position, he never was 
afraid or ashamed to acknowledge, but rather looked 
back to as enhancing his subsequently acquired honors ; 
nay, that is not all — as imparting to him those salu- 
tary lessons of symjpatliy with those who struggle to 
carve out their road to distinction through poverty 
and adversity, and afterwards secure the elevation 
they attain, by the strength they acquire in its labo- 
rious and honorable pursuit. 

Judge Kelly, while yet a student of law, became a 
popular and eloquent political speaker; united in all 



JOSEPH ALLISON. 285 

public and pliilantliropic measures for the suppression 
of vice, and the amelioration of the condition of the 
poor or neglected, and long before he held any official 
position, he had effected a lodgment in the hearts of his 
fellow citizens, which his subsequent exemplary and 
cordial deportment was calculated to confirm. Upon 
being placed in nomination as a Judge of the Court of 
Common Pleas, the overwhelming vote which he re- 
ceived was the best voucher for the favor in which he 
was held by all classes, and conditions, and parties of 
his fellow men. He is still a young man, and his 
honors, though considerable, have not yet reached their 
maturity. He furnishes the best assurance of future 
elevation, by his devotion to his present duties. 



JOSEPH ALLISON. 

Judge Allison is perhaps the youngest judge in 
Pennsylvania. His parents were highly respectable 
citizens of Harrisburg, Pennsylvania, where he was 
born, in the year 1820, and where, at the age of nine- 
teen, he commenced the study of the law, under the 
direction of John B. Adams, a young, but a promising 
member of the legal profession. Mr. Allison became 
a member of th^) Philadelphia bar, on the twenty-third 

VOL. IT. — 13 



186 THEFORUM. 

of November, 1843. Although he did not enjoy the 
advantages of a collegiate education, he at least may 
hoast, with William Lewis, David Rittenhouse, Chan- 
cellor Walworth, and other great men, that he in- 
structed himself and graduated upon a farm. He was a 
youth of much energy and ambition, and, of course, of 
great perseverance. His pursuit of knowledge was 
unremitted ; and although, with all his merits, a modest 
man, no one who marked his brief and limited career at 
the bar, could fail to perceive that he was destined to 
make a highly respectable figure in the legal profession. 
Considering the disadvantages encountered by him, 
he advanced himself rapidly in business, and at the 
time when he was unexpectedly placed in nomina- 
tion for a judicial seat, he had succeeded in laying the 
foundation for a competent, if not lucrative practice. 
We need not say he was a man of unstained morality, 
but we may be permitted to state that he was possessed 
of the kindest and most philanthropic sentiments. He 
is perhaps sometimes a httle testy in his temper, but 
even this infirmity arises from his nice sense of deli- 
cacy and propriety in the administration of justice. 
Any roughness or unkindness at the bar, obviously 
jars upon his feelings, and destroj^s the equilibrium 
and composure of his mind. No man aims more ear- 
nestly at a faithful discharge of his duties, and if he 
commits any errors, to use the stereotype phrase, which 
has been in use from time immemorial, "they are errors 



JOSEPH ALLISON. ]^§7 

of the head, and not of the heart." In further and 
jtist commendation of him, it may be observed, that he 
is a man of untiring industry, and unquestioned fideUty. 
He has within him materials for a distinguished judge. 
Neither a lawyer nor a judge is to be made in a year, 
with the aid of all the advantages and appliances that 
nature, education, and good fortune can supply; but 
with the talents and habits of Judge Allison, we may 
safely venture to predict that, under the ripening influ- 
ence of time and experience, he will have no occasion 
to shrink from comparison with any associate judge 
that has ever occupied his present highly responsible 
position. 

Judge Allison is a delicately formed man, of some 
five feet six inches in height, of an agreeable face, and 
of frank and conciliatory manners. He manifests com- 
mendable patience upon the bench, and his whole judi- 
cial course has been marked by an apparent desire to 
perform his duty to the best of his abihty, and with- 
out fear, favor, or affection. It would be most unrea- 
sonable to expect from a man of his years and limited 
opportunities, that proficiency which can alone be at- 
tained by prolonged experience. Neither in law nor 
in agriculture, can we hope to gather our harvest in 
seed time. We should remember, that " to every thing 
there is a season, and a time for every purpose under 
Heaven^ 



188 



THE FORUM. 



List of Judges and Attorneys General since the Revolution. 



THE JUDGES OF THE CIRCUIT COURT OF THE UNITED 
STATES, FOR THE THIRD DISTRICT. 



James Wilson, April 12, 1790. 
*William Cushing, Oct. 11, 1792. 
*James Iredell, April 11, 1793. 
*William Patterson, April 11, 1795. 



*Sanniel Chase, April 11, 1798. 
Bushrod Washington, Dec. 20, 1798. 
Henry Baldwin, April 12, 1830. 
Robert C. Grier, Sept. 14, 1846. 



THE JUDGES OP THE DISTRICT COURT OF THE UNITED 
STATES, FOR THE EASTERN DISTRICT OF PENNSYL- 
VANIA. 



Francis Hopkinson, April 12, 1790. 
Richard Peters, April 11, 1792. 
Joseph Hopkinson, April 11, 1829. 



Archibald Randall, March 8, 1842. 
John K. Kane, June 16, 1846. 



DISTRICT ATTORNEYS OF THE UNITED STATES FOR 
THE THIRD DISTRICT. 



William Lewis, 
William Rawle, 
Jared Ingersoll, 
Alexander James Dallas, 
Charles Jared Ingersoll, 
George M. Dallas, 



John M. Read, 
William M. Meredith, 
Henry M. Watts, 
Thomas M. Pettit, 
John W. Ashmead, 
James C. Vandyke. 



THE MIDOTGHT JUDGES. 

Wm. Tilghman, C. J., March 3, 1801. 1 William Griffith, 1801. 
Richard Bassett, Feb. 20, 1801. I 

The Court ceased to sit May 2Cth, 1802. 



* These Judges held Circuit Courts at the dates set opposite their 
names— William Cushing at York, the rest at Philadelphia. As they 
were Judges of other Circuits, we suppose they were detailed for a spe- 
cial purpose to the Third Circuit. 



LIST OF JUDGES. 



189 



JUDGES OF THE SUPREME COURT OF PENNSYLVANIA 
SINCE THE REVOLUTION. 

(Chief Justices.) 

Thomas M'Kean, July 28, 1777. j William Tilghman, Feb. 28, 1806. 
Edward Shippen, Dec. 18, 1799. [J. Bannister Gibson, May 18, 1827. 



SINCE AMENDMENTS OF 1850 TO THE CONSTITUTION. 
Jeremiah S. Black, Dec. 1, 1851. | Ellis Lewis, Dec. 4, 1854. 

PUISNE JUDGES. 



Wm. Augustus Atlee, Aug. 16, 1777. 
John Evans, Aug. 16, 1777. 
George Bryan, April 3, 1780. 
Jacob Rush, Feb. 26, 1784. 
Edward Shippen, Jan. 31, 1791. 
Jasper Yeates, March 21, 1791. 
William Bradford, Aug. 20, 1791. 
Thomas Smith, Jan. 31, 1794. 
Hugh Henry Breckenridge, Dec. 18, 

1799. 
J. Bannister Gibson, June 27, 1816. 
Thomas Duncan, March 14, 1817. 



Molton Cropper Rogers, April 15, 

1821. 
Charles Huston, April 17, 1826. 
John Tod, May 25, 1827. 
Frederick Smith, Jan. 31, 1828. 
John Ross, April 16, 1830. 
John Kennedy, Nov. 29, 1830. 
Thomas Sergeant, Feb. 3, 1834. 
Thomas Burnside, Jan. 2, 1845. 
Richard Coulter, Sept. 16, 1846. 
Thomas S. Bell, Dec. 18, 1846. 
George Chambers, April 16, 1851. 



SINCE AMENDMENTS OF 1850 TO THE CONSTITUTION. 



Jeremiah S. Black. 

Ellis Lewis, Dec. 1, 1851. 

J. Bannister Gibson, Dec. 1, 1851. 

Walter H. Lowrie, Dec. 1, 1851. 

Richard Coulter, Dec. 1, 1851. 



George W. Woodward, May 8, 1852. 
George W. Woodward, Dec. 6, 1852. 
John C. Knox, May 23, 1853. 
John C. Knox, Dec. 5, 1853. 
Jeremiah S. Black, Dec. 4, 1854. 



190 



THE FORUM, 



JUDGES OF THE DISTRICT COURT FOR THE CITY AND 
COUNTY OF PHILADELPHIA. 



Joseph Hemphill, P. J., May 6, 1811. 
Anthony Simmons, May 6, 1811. 
Jacob Somers, June 3, 1811. 
Thomas Sergeant, Nov. 9, 1814. 
Joseph Hemphill, P. J., April 5, 1817. 
Joseph B. M'Kean, April 5, 1817. 
Anthony Simmons, April 5, 1817. 
Joseph B. M'Kean, P. J., Oct. 1, 1818. 
Joseph Barnes, Oct. 1, 1818. 
Jared IngersoU, P. J., March 30, 

1821. 
Joseph B. M'Kean, March 30, 1821. 
Benjamin R. Morgan, March 30, 

1821. 
Moses Levy, P. J. 
Joseph B. M'Kean, P. J., March 30, 

1825. 



Joseph Barnes, March 30, 1825. 
John Hallowell, April 22, 1825. 
Joseph Barnes, P. J., October 24, 

1826. 

Charles S. Coxe, October 24, 1826. 
Thomas M.Pettit, February 16, 1833. 
Thomas M. Pettit, P. J., March 30, 

1835. 

George M. Stroud, March 30, 1835. 
Joel Jones, April 22, 1835. 
Joel Jones, P. J., March 31, 1845. 
John K. Findlay, April 1, 1845. 
George Sharswood, April 8, 1845. 
George Sharswood, P. J., February 
1, 1848. 
George M. Stroud, February 5, 1848. 



UNDER AMENDED CONSTITUTION OF 1850. 

Geo. Sharswood, P. J., December l,[Geo. M. Stroud, December 1, 1851. 
1851. 1 J. L Clark Hare, December 1, 1851. 



COURT OF COMMON PLEAS OF THE CITY AND COUNTY 
OF PHILADELPHIA, FROM 1776 TO 1851. 



(Presidents.) 



Benjamin Chew, 
John Coxe, 
Jacob Rush, 



John Hallowell, 
Edward Kingf. 



ASSOCIATE LAW JUDGES OF COMMON PLEAS. 



Archibald Randall, 
James Campbell, 
John Richter Jones, 



i William D. Kelly, 
Anson V. Parsons. 



LIST OF ATTORNEYS GENERAL. ^Q]^ 



Oswald Thompson, P., 
William D. Kelly, 



PRESENT JUDGES. 



! Joseph Allison. 



ATTORNEYS GENERAL OF PENNSYLVANIA SINCE THE 
REVOLUTION. 



Jonathan Dickinson Sergeant, July 

28, 1777. 

William Bradford, Jr., November 23, 

1780. 
Jared IngersoU, August 22, 1791. 
Joseph B. M'Kean, May 10, 1800. 
Walter Franklin, January 9, 1809. 
Richard Rush, January 26, 1811. 
Jared IngersoU, December 12,1811. 
Amos EUmaker, December, 1816. 
Thomas Sergeant, July 6, 1819. 
Thomas Elder, December 20, 1820. 
Frederick Smith, December 18, 1826. 
Amos Ellmaker, December 18,1828. 
Philip S. Markley, August 17,1829. 
Samuel Douglass, Februai-y, 1830. 



Ellis Lewis, February, 1831. 
George M. Dallas, October 14, 1833. 
James Todd, December, 1835. 
William B. Reed, April 2, 1838. 
Ovid F. Johnson, January 15, 1839. 
John K. Kane, January 1, 1845. 
John M. Read, June 23, 1845. 
Benjamin F. Champneys, Dec. 18, 

1846. 
James Cooper, July 31, 1848. 
Cornelius Darragh, January 4, 1849. 
Thomas E. Franklin, April 28, 1851. 
James Campbell, January 21, 1852. 
Francis W. Hughes. 
Thomas E. Franklin. 



CHAPTEU IX. 

PRESENT RELATIONS OF COURTS AND COUNSEL. 

The Law, so long as it is faithful to itself, is always 
sure, and there can be nothing to fear. A learned and 
honest bar, and an upright and competent bench — and 
they are generally to be found together — are essential 
to the well-being and protection of every civilized 
community ; — property, civil and rehgious liberty, 
character, life itself, depend upon the Law and its 
ministers. 

The dignity of the bench, and the independence of 
the bar, are best maintained by being respectively 
regarded. They are actually necessary to each other, 
and should be carefully preserved. 

The court that presides over a crowd of obsequious 
and servile lawyers, neither shines in original nor 
reflected light. To rule among freemen, is an honor ; 



COURT AND COUNSEL. X93 

to govern serfs, is a disgrace. What is to become of 
fidelity to clients — of reverence for justice — of regard 
for human character or human life, if they are all at 
last to be brought to the standard of " may it please 
your honors ?" 

No gentleman of the bar will ever prove deficient 
in just courtesy towards a judicial tribunal. His- 
tory hardly records such an instance ; it presents 
many lamentable instances of culpable subserviency. 
The danger rather is, that members of the bar may 
sometimes sacrifice their true position, and become 
subservient to the views of the court, in order to insure 
favors or increase popularity. The court does not 
depend upon the bar, but the bar sometimes are bene- 
fited by the court. And its references, audits, etc., form 
the perquisites of a portion of the bar, and rest upon 
the patronage of the court. 

Nay, not only this, but the smile of the court upon 
a young aspirant for fame, promotes his fortune, and 
their frown tends to his disgrace. Clients select the 
favorites of the bench as their favorites. The result 
is, that most men are ambitious of court favor, and 
thereby, for a time, derive golden opinions from all 
sorts of people. 

It is in these circumstances expecting much, to look 
for independence on the part of those who are depend- 
ent for advancement and support upon their submis- 
siveness to the bench. And even with those established 



294 THE FORUM. 

in business, though they may not desire to increase it, 
they may fear to diminish it ; a result which nothing 
is more likely to produce than the loss of judicial favor. 

There never was a more honorable, and high-minded, 
and weU-informed bar, than that of Pennsylvania ; and 
it was properly said by Judge Washington to be the 
" model bar of the United States." But it cannot be 
disguised that, for the last ten years, the efforts of all 
the courts seem to have been directed, unintentionally 
we admit, against the interest, the advancement, and the 
success of the profession. There is no important cause 
in which a young barrister has any chance of distin- 
guishing himself; and in an umnportant case, no man 
can possibly distinguish himself. 

By a rule of the District Court, Common Pleas, Oyer 
and Terminer, and Quarter Sessions, but one counsel on 
a side is permitted to argue a cause. If, therefore, a 
young man happen to be an adjunct, he may merely open 
the case, and present it, and then his functions cease. 
Instead of a system of forensic degladiation, by which 
he is from time to time to derive improvement, he will 
grow gray without any opportunity to make his mark 
upon the public. His patience is exhausted. He 
becomes a mere hanger-on of the courts. His hopes 
are dissipated. " His dream of fame is out." In the 
language of Johnson, "he is old, and does not want it." 

This is every way pernicious to the bar, and in time it 
will not only seriously affect its utility, but its general 



COURT AND COUNSEL. 195 

character ; in short, banish all those charms, and blan- 
dishments, and lofty hopes, that make life precious. 
The judges perfectly well know that, for the most part, 
no member of the bar, however carefuUy his founda- 
tions in the law are laid, commences to build upon 
them for some years after his admission. He must 
become known. 

There is more liberality at the bar than in all the 
other sciences. A veteran is desirous of aiding a 
younger brother, or, if you please, desirous of his 
aid ; the client is advised to employ him ; he is em- 
ployed. Under the present rules of court, what can 
he do for others, or for himself? — ^virtually nothing. 
He literally encumbers the cause, and if he had the 
talents of Cicero, or Erskine, or Curran, they would 
avail him nothing. Nothing but accident could save 
him, by thrusting him into the place of his senior. 
Hargrave, and Dunning, and many others, were thus 
rescued from endless obscurity. But this is not all ; 
the elder members of the bar being thus deprived of 
the assistance of the young, take the whole manage- 
ment of a cause, and in time lose sight of the brother- 
hood of their juniors ; and thus cliques and rivalries 
will be created, where nothing but liberality and fra- 
ternal love should prevail. 

We say, this is laying the axe to the root of profes- 
sional growth and professional eminence; besides, it 
is an encroachment upon the rights of the community. 



IQQ THE FORUM. 

For forty years, during the palmy state of the bar, 
no such rule prevailed. At least ttvo counsel upon 
a side were heard, and occasionally more than two. 
Certainly, no good reason can be assigned for the 
change, and it has hitherto produced no beneficial 
results. 

The present rule is bad enough in civil cases ; but 
a similar course is adopted in criminal, and, to a cer- 
tain extent, even in capital cases. A man is indicted 
for larceny, bigamy, forgery, etc. He can be heard 
only by one counsel, when his temporal, and we might 
almost say, his eternal interests are at stake. Such a 
rule as this was never heard of untU within the last 
ten years; and if not contrary to our constitutional 
rights, it is obviously unjust, and opposed to an estab- 
Hshed practice of half a century. It arises in some 
measure from judges having been elevated to the bench 
without ever having been extensively engaged at the 
bar, or from their forgetting, in their new positions, 
their former interests and obligations, and the condition 
of those who occupy their former places. If such rules 
had prevailed during the time of the Ingersolls, the 
Rawles, the DaUases, the Sergeants, the Binneys, and 
the Hopkinsons, where would the bar be now? — 
where few could find it, or desire to find it. We live 
now almost entirely in the light of the past, which 
continues to glimmer even through the darkness of the 
present. The deterioration is entirely owing to the 



COURT AND COUNSEL. I^'J 

courts, and those anomalous and pernicious rules to 
which we have referred. 

It has heen said, that there is an exception to the 
rule complained of, in behalf of prisoners charged 
with a capital offence. Does it ever enter into the 
mind of the Court, that there are some punishments 
worse than death? Why, then, restrict those who 
best know the value of their own peril, from adopting 
commensurate means to avoid it ? Why alter and di- 
minish privileges which have become rights, and which 
are adapted to, and inherent in the system of republi- 
can government ? The next step may be to take up the 
old habits which even royalty — during the reign of 
Victoria — has thrown off, and to deny the privilege of 
advocacy altogether, to all those who shall most re- 
quire its aid. 

But there is still another objection to judicial inno- 
vation upon established and salutary practice or usage ; 
and that is, in restricting counsel to one hour of a side, 
which — as it generally operates — is half an hour each, 
in the argument of a case in banc, however important. 
This subject has been ably and admirably discussed, 
in an article in the " Legal Intelligencer," under date 
of November loth, 1855, in which all its bearings are 
exhibited, and from which we cannot do better than pre- 
sent a few extracts, in enforcement of this discussion : — 

"And wliat," says the writer, "is to be the effect of this new 



198 THE FORUM. 

system, upon the bar ? Where would have been our great lawyers, 
if they had practised under the half-hour rule ? Where will be 
the profession, and all that it inherits, if that rule stand for a gene- 
ration or two ? If the judge, who hears no arguments, nor listens 
to the wholesome voice of free discussion, but feeds on paper-books, 
must dry up, like men who live within doors, and never breathe 
fresh air : if paper-books are to arguments, what close apartments 
and chicken-water are to solid food and invigorating exercise — if 
belonging, at best, to the ^priesthood of expediency,' and there 
classing in usefulness and dignity with the warming-pan, they may 
serve to coddle the judicial extremities, but can never add one jot 
to the vital energy of the law : if they must, at last, make mum- 
mies of the judges, they will, at the same time, change the free 
and animated bar from sentinels of the law, the cheerful friends 
and faithful allies of the Court, the protectors and champions of 
the suitor, into a poor, pitiful, heartless guild. We are, by these 
rules, we have already said, reduced to the reluctant consciousness 
that we have little influence on the issue of the suits we bring. 
Instead of carrying on a public struggle in the presence and under 
the eye and ear of the Court, we put our mutual miserable com- 
plaints into the lion's mouth, where they lie in darkness and mys- 
tery until the oracle speaks, and we witness, in the distribution of 
rewards and punishments, how poor a thing the voiceless advocate 
is become. There he stands, armed, ready and prepared for tis 
client's cause, but at the same time as useless and helpless as a 
baby; to all practical purposes — 

' As skilless as unpractised infancy ;' 

his predicament, that of an army in the field, full of courage and 
discipline, and waiting only to be led against the enemy; but 
under some strange infatuation in those in command, ordered to 
stand idle and inactive, while everything which they were organ- 



COURT AND COUNSEL. ^99 

ized to defend, is wasted and destroyed before their eyes. The 
curtain rises — lie presents his A. B. case to the Court — and then 
the curtain falls. He is disrated from a person of the drama to a 
scene-shifter ! He has his life in minutes, like summer insects on 
the surface of a pool. When our office shall be finally settled to 
be to write memorials, let us present them on our knees ! Let us, 
when we are born again, be re-baptized, and put on our window- 
shutters, that we are paper-book makers to the Supreme Court of 
Pennsylvania. 

" But will it last — this attempt to sustain the law on pamphlets, 
and have Courts without lawyers ? this case of hypochondria, re- 
sembling that where the man had no confidence in his own legs, 
and would not stand on them. How will this effort to put down 
public speaking, end?" 

But even this rule, regulating the length of argu- 
ments in banc, is not so objectionable as the effort 
often made by the Nisi Prius, (with no rule to counte- 
nance it,) to restrict not only the number of counsel, 
but the duration of speeches. " Thus bad begins, and 
worse remains behind." 

It is not an unusual thing for the Court, after the 
evidence is closed, in a case of eight or ten days, to 
turn to the counsel and say, " Cannot only one coun- 
sel speak on a side ?" Now, we may properly ask, 
what has the Court to do with this ? If the counsel, 
to secure favor, agree to the suggestion, the rights of 
the client are sacrificed. If the counsel refuse, as they 
ought to, they either speak to unprosperous cases, or 
they encounter the prejudices of an exhausted jury. 



200 THE FORUM. 

who are taught to believe that the case is of but little 
importance and involves no difficulty, and that it is a 
mere question in a debating society — not before a sacred 
tribunal of justice — in which nobody gains, and nobody 
loses, but the disputants. Well, the counsel maintain 
their rights, and the speaking is to proceed. What 
next ? why, the judge — it being near three o'clock — 
reminds them of time, and suggests the propriety of 
taking fifteen minutes each — one hour divided between 
them. Thus the lawyer is first to be drawn, and then 
to be quartered. Let any member of the community, 
who is interested in an important cause, say whether 
this is what justice or policy requires. It may be 
sport to the spectators, but often death to the parties. 

To show you that this is not a fancy sketch of the 
dispatch of justice, let us present one or two, out of 
many instances of this and a similar kind. 

In a case in the Nisi Prius, in which forty witnesses 
were examined, and two days occupied by the evidence ; 
at the close of the testimony, the learned and excellent 
judge, desirous, no doubt, to save time, told the coun- 
sel, that he would hear one counsel on a side argue the 
cause. The senior counsel for the plaintiff respectfully 
told the Court that he was sorry he could not submit 
to any such restriction; that by the rule of the Supreme 
Court, two counsel were permitted to address the jury 
— and that this case requn-ed it. " Very well," said 
his honor, " then you can all speak, but each one only 



COURT AXD COUNSEL. 201 

for j&fteen minutes." The senior counsel still objected, 
denying the authority to prescribe, by anticipation, the 
limits of the case. "If," said he, "the Court can limit 
counsel to fifteen minutes, the restriction may be re- 
duced to five minutes — and if to five minutes, counsel 
may be prohibited from speaking at all. For myself," 
said the counsel, "I care but little; but I should be un- 
willing to compromise the rights of others by an acqui- 
escence in what appears to me to be an encroachment 
upon the immunities of the members of the bar." The 
case, however, proceeded upon the judge's order, and 
when it became the turn of the senior to speak, he asked 
the Court whether the order was to be enforced ; and 
upon being answered in the afiirmative, he declined ad- 
dressmg the jury, and the case was lost^ although the 
referees to whom it had previously been submitted, 
had awarded to the plaintiff, upon a full hearing, the 
sum of one thousand dollars. 

Another case resulted differently — it was before 
Chief Justice Black. He directed a similar course, in 
a case that occupied ten days. The same counsel 
was concerned, and the same objection made; and 
the learned judge, with a frankness for which he is 
remarkable, at once admitted that he had no authority 
to prescribe the rule — and the cause proceeded upon 
the ordinary footing. 

But a more remarkable instance of an attempt to 
control coimsel, was exhibited in the case of Farkin, 

VOL. II. — 14 



202 THE FORUM. 

tried in the Court of Oyer and Terminer, in the year 
1843. It was a case of murder, and " neck or nothing" 
was involved in the issue. The prisoner, who was an 
humble man, was without funds or friends — and the 
Court appointed counsel for him. It was a most perilous 
case, and fought throughout with great desperation. The 
evidence was finished, and the summing-up concluded 
at 12 o'clock on Saturday night, when the counsel con- 
cerned were informed that the case might be adjourned 
over until Monday morning, upon an agreement on 
their part, not to occupy more than an hour. The de- 
fendant's counsel replied that he could enter into no 
such agreement ; that he was there by the appointment 
of the Court, but he could not, in obsequiousness to the 
views of the Court, omit the performance of his duty, 
or sacrifice the rights of the defendant ; that he should 
speak no longer than the importance of the case seemed 
to require — but he should speak just so long, if it took 
him till the cock crew. The case was not finished until 
after 4 o'clock in the morning, and the verdict, acquit- 
ting the defendant of the capital part of the charge, 
was rendered at 9 o'clock on the morning of the 
Sabbath. 

Now, no doubt, the learned judge acted from the 
best motives, but he was certainly wrong ; and if the 
course proposed had been adopted, it might have re- 
sulted in the loss of human life. A judge, especially 
in such a case, has no more to do with the length of a 



COURT AND COUNSEL. 203 

counsel's speecL, than the counsel has to do with the 
leilgth of his honor's charge, or the measurement of his 
foot. A want of mutual respect produces mutual en- 
croachmentj which results in mutual injury, to say 
nothing of its effect on the rights of the community. 

These, or similar occurrences, are not unfrequent. 
To those who do not understand, or justly appreciate, 
the perfect system of jurisprudence, they may appear 
to be unobjectionable; but, assuredly, every intel- 
Kgent man, who justly estimates the sanctity of the 
laws, and the rights of society, must look upon them 
with alarm, if not with abhorrence. It is useless to 
attempt meeting these objections by suggesting that re- 
gard for time requires expedition. So it does ; but cer- 
tainly not at such a sacrifice. You might as well 
abolish courts of justice altogether, because her admin- 
istration employs half the year. This would save time, 
and save salaries — and only euin the country. 

There is a single additional suggestion which we take 
leave to make, in conclusion of this chapter. The 
Courts should not only approve, but promote, as far as 
possible, mutual liberahty at the bar. They should 
set their faces against every attempt at sharp practice; 
it may be very shrewd, but it leads to mischief and 
discredit. We remember a distinguished judge having 
observed, upon an application by Mr. W. to release his 
antagonist from a nonsuit : " You had better hold 
the advantage gained, as counsel owe it to clients to 



204 THE FORUM. 

look mainly to their interest and benefit." A member of 
the bar, who was present, remarked that, " if that were 
the case, and adopted as a principle, no honorable or 
honest man could be a member of the legal profession. 
Lawyers would be no better than sharpers, and they 
would merit the reproach that in times passed had been 
cast upon them by the community. In performing our 
duty to our clients, we must not forget that we owe a 
duty to ourselves, and to a power above us. If the 
client, does not approve the counsel who adopts this 
view, let him get others more congenial to his purpose. 
Proper indulgence is not only required by honesty, but 
it is entirely consistent with personal and professional 
policy. No man can be ready at all times, and he 
should not be illiberal to others, as he thereby teaches 
others illiberahty towards him." "But," said the 
judge, " if you let the delinquent off, he may never 
get ready." " That is to say," was the reply, " you 
take him for a knave — and I consider him, as I am 
bound to do, an honest man. And you sometimes 
convert him into what you take him for, by condemn- 
ing him to resort to craft or illiberality, in order to 
protect himself. Whereas, in a profession like the law, 
no man loses by fairness and generosity." 



CHAPTEE X. 

JOHN SERGEANT, L.L.D. 

BORN, 1779— DIED, NOVEMBER 25th, 1852. 

About the year 1810, a new legal era arose, em- 
bracing members of the bar admitted between the 
years 1790 and 1800, inclusive; most of whom were 
students in the offices of those to whom we have already 
referred. There were Hopkinson, Binney, Chauncey 
and Sergeant; WiUiam Meredith, Charles W. Hare, 
John B. Wallace, Hallowell, and Condy. These gen- 
tlemen did not, for some years from the time of their ad- 
mission, establish themselves in any extensive practice. 
The heavier business of the profession was almost mono- 
polized by their seniors ; but laboring on and biding their 
time, of which their talents assured them, like good 



206 THE FORUM. 

soldiers, tliey were prepared to take their post, and 
fill up the forensic ranks, whenever death or accident 
might furnish an opening.* 

Mr. Sergeant for some years held the situation of 
Deputy Prosecuting Counsel. Mr. Hopkinson offi- 
ciated in the Circuit Court of the United States as 
an assistant of the District Attorney. Mr. Binney 
took up the business of Reporter for the Supreme 
Court, and Mr. Meredith, Mr. Wallace, Mr. Chauncey, 
Mr. Condy, and Mr. Hallowell, like young lawyers 
of the present day, but not with comparable facilities, 
betook themselves to the inferior courts as a prepara- 
tory step to a higher destiny, which they were enti- 
tled to anticipate, and which they eventually reached. 
All these were men of extraordinary talents — worthy 
to be the successors of the fathers of the bar. They 
gradually but slowly gained ground, and as they ad- 



" The only surviving members of the bar admitted before the year 
1792, are Anthony Morris and James Gibson; the former admitted on 
the 27th of July, 1787, and the latter on the 28th of September, 1791. 
Mr. Morris is now ninety-one years old, and Mr. Gibson eighty-seven — 
men of mark in their day — both of them still retaining unusual vigor of 
body and mind for their period of life, and losing nothing, from the lapse 
of years, of that reputation which they bore in earlier life, of accomplished 
general scholars, sound lawyers, and finished gentlemen. We had writ- 
ten thus much, when, before the ink was dry in the pen, we received the 
information of the death of Mr. Gibson, whom we had seen but a few 
hours before. Mr. Morris is now the only survivor of the Philadelphia 
lawyers of the last century. — (Tuesday, July 8, 1856). 



JOHN SERGEANT, L.L.D. 207 

vanced tlieir seniors receded 5 popular favor carved out 
for itself new channels, and finally the new dynasty 
almost entirely superseded the old. 

Hopkinson held a high post for oratory from the time 
of his speech in behalf of Judge Chase before the Senate. 
Sergeant, Binney, and Chauncey, very soon gave proof of 
lofty legal attainments — ^built upon integrity that was 
never questioned, and an industry never exhausted. 
There probably never were three men who in every 
respect were more united, or better entitled to be 
considered the models and the ornaments of the bar. 
Nor was their influence limited to this sphere. They 
shone wherever they moved, and were equally dis- 
tinguished in social, political, and professional life. 
Their education was the most thorough and complete 
in literature and science. Their minds had been care- 
fully disciplined to business, and to all these accom- 
plishments was added the quality of distinguished and 
powerful orators. With such claims upon public re- 
gard, their advance to the proudest posts of the pro- 
fession was not to be resisted. There they stood for 
more than thirty years, until the retirement of one, 
and the death of the others, closed thek glorious 
career — ^leaving a grateful memory of their excellence 
to all that knew them. 

We cannot, perhaps, present a better summary of 
the professional character of Mr. Sergeant, than that 
which his great rival himself furnishes, in his speech 



208 THE FORUM. 

before tlie bar meeting, upon the melanclioly occasion 
of Ms death, in the year 1852. 

How interesting and impressive are the lessons which 
we derive from the survivor, in depicting those great 
powers of his lamented cotemporary, the exercise of 
which he had so often witnessed, so often felt, and so 
warmly admired : — 

'' Jolin Sergeant," says Mr. Binney, in describing Lis earlier 
career, "was a faithful student, addicted to little pleasure, social, 
cheerful, and gay with the friends whom he preferred. * * * 
He had at that time what all have since observed, an extraordinary 
quickness of thought, and an equally extraordinary grasp or com- 
prehension of the thought or argument that was opposed to him. 
Whatever he studied he knew well, and when he left the office, 
was as accomplished a student as ever was admitted to the bar. 
I have seen his great powers in its bud — you have seen it in its 
bloom. It was the same flower more fully developed, but having 
from the strength of my first impression, no more freshness or 
beauty to me, at any hour, than when I saw it in its opening." 

But in bestowing attention upon this just and elo- 
quent reference to the character of the departed, we 
have somewhat anticipated the duty which we have 
humbly assumed, and to the imperfect performance of 
which we now cheerfully return, observing, as we have 
more than once done, that in sketching some of the 
features of the venerable dead, we do not profess to 
write their history, but simply to recall and gratefully 
embalm their memory. 



JOHN SERGEANT, L.L.D. 209 

John Sergeant was the son of Jonathan Dickinson 
Sergeant, who was, as has been observed, an eminent 
lawyer, and shortly after the Revolution, the Attorney 
General of the State of Pennsylvania. 

The subject of this notice entered Princeton College 
in the year 1792, and graduated with honor in the 
year 1795. He subsequently became a student in 
the of&ce of Jared Ingersoll, and in the year 1799, was 
admitted to the practice of the law under very favorable 
auspices, which improved daily during the whole course 
of his professional career, than which there never was 
a higher or more honorable career, in this or any other 
country. 

At the time of his death he was in the seventy-third 
year of his age, and had been for more than forty years 
of that time, exclusive of his political or national employ- 
ment, in the most extensive and lucrative practice.* He 
enjoyed the fullest confidence of the entire community 
to the last — and he merited it all. His learning was 
profound, and his piety sincere, though without any 
ostentation ; and there has rarely been a man who more 
sedulously observed the two commandments of our Sa- 
viour, upon which, we are divinely taught, " hang all 
the law and the Prophets." 

For a year or two before his death his health be- 
came obviously impaired ; and on the 25 th of Novem- 

* It was currently said, that Mr. Sergeant paid for his costly house 
out of his professional income during the time it was being built. 



210 THE FORUM 

ber, 1852, lie bowed to man's inevitable doom — "The 
path of glory leads but to tbe grave." 

Mr. Sergeant was never reserved, diffiding, or sus- 
picious. If he gave you his heart, he gave you his 
whole heart with the frankness of a child. In my 
last conversation with him, while speaking of my inten- 
tion to relinquish office business, and limit myself to 
the mere duty of public advocacy, he replied, that 
with my constitution I " might probably continue ten 
years longer in active professional pursuits, and that 
at all events, employment of some sort was necessary 
to happiness. But for my part," continued he, "1 
should not have gone beyond seventy. My last speech 
at Washington was made after that age, and it was a 
failure — I broke down." Judgment is generally impair- 
ed with the decay of the other faculties, but with him it 
remained in pristine vigor, and calmly witnessed, without 
sharing in, the deterioration of all the other functions. 

It would be a delightful task to invite attention to 
his private virtues \ but this would be beyond our pre- 
scribed limits, and might rouse sympathies that are in 
repose, or open wounds that time has partially cicatrized. 
Even his public life requires no eulogy or memorial, 
for he was known, and will long be affectionately and 
gratefully remembered. We must be permitted, how- 
ever, as a double tribute, here to introduce another 
brief extract from a memoir, which is the production 
of one of his most devoted friends and inseparable 



JOHN SERGEANT, L.L.D. 211 

companions, and who is the last survivor of the distin- 
tinguished forensic triumvirate. We allude to Horace 
Binney — the last lone star of that bright constellation, 
which for fifty years shed its benign influence over 
the profession and practice of the law. 

Mr. Binney, with emotions that may be more readily 
conceived than described, thus speaks of his departed 
companion — ^his lamented friend : — 

"I knew tim well. I respected him truly. I honored him 
faithfully. I honored and respected him to the end of his life. I 
shall honor and respect his memory to the end of my own. * ^ 
* * In addition to great quickness, grasp of thought, and power 
of comprehension, he derived through an excellent education, the 
art of arranging his argument with perfect skill, according to the 
rules of the most finished and effective logic ; and he was able to 
penetrate the want of it in any body that was opposed to him. He 
never confused his premises and conclusions by blending them 
together or involving in any way — and he never permitted any 
one to do it against him. He marched to his conclusions by a 
path or paths that he was willing to let every body trace and ex- 
amine, after he had completed the passage — and it was not safe 
for any man to do otherwise with him. 

" His mind was of a suggestive character. He did not like to 
read for the purpose of thinking; he thought for the purpose of 
reading, to corroborate or to rectify his thoughts. It was his 
striking way; and while sometimes it exposed him to inconve- 
nience, at other times it gave him a sort of electric power, that was 
altogether marvellous." 

Such are the sentiments of one who knew Mr. Ser- 



212 THE FORUM. 

geant best and loved him most. And probably there 
is no man in the Union who ever enjoyed the pleasure of 
political, professional, or personal intercourse with him, 
who would not have subscribed to his character as 
thus drawn. 

Mr. Sergeant was in stature rather below the middle 
height, delicately formed, with dark hair, which re- 
mained unchanged up to the time of his death. He 
had fine large, dark, lustrous eyes, a prominent nose, 
large mouth, and a forehead expansive and indicative 
of great intellectual power — causality and order were 
its prominent indications, but in all respects it was a 
perfect study for a phrenologist.* He always dressed 
with the greatest neatness and precision. His temper 
was mild and equable ; his manners cordial and un- 
sophisticated. He was one of the first lawyers of his 
day, and certainly, if equalled, not surpassed by any 
of his cotemporaries, as an eloquent and effective advo- 
cate. His voice was not musical, but at times it was 
powerful, and always most persuasive. In addressing a 
jury, he seemed rather to argue his case ivith them than 
to them, and in the language of one of his competitors, 
he virtually got into the jury-box, and took part, as 
it were, in the decision of his own case. His high 

* In the Law Library of Philadelpliia may be seen an exquisite por- 
trait of Mr. Sergeant, painted, at the instance of the bar, by Mr. Thomas 
Sully, whose name as an artist is historical, and only requires to be 
mentioned. 



JOHN SERGEANT, L.L.D. 213 

character for honesty and candor always secured to him 
an attentive hearing ; and the freshness and warmth of 
his feehngs, and the energy of his appeals, readily led to 
favorable results. He was a good general scholar, but 
on that score not equal to his brother, Judge Sergeant, 
or to Mr. Binney. Too much of his time was devoted to 
legal and political science, to admit of his bestowing 
much attention upon Belle Lettre studies. We remem- 
ber well some ten years before his death, when engaged 
in the case of Dyott, a question involving an important 
water-right, with J. R. IngersoU, Chauncey, and Binney, 
all those gentlemen, among the best speakers at the bar, 
occasionally mounted upon the poetic wing, and pro- 
duced great effect by the beauty of their literary quo- 
tation. Before Mr. S. rose to reply, and while he was 
walking up and down the room, we observed to him 
that there was a passage from Shakspeare exceedingly 
appropriate in reply, and repeated to him those lines 
from Othello: 

'*' Like to the Pontic sea, 
Whose icy current and compulsive course 
Ne'er feels retiring ebb, but keeps due on 
To the Propoutic and the Hellespont.'' 

His fine face brightened with pleasure, as he said, 
" Do write it down for me ; for, do you know, I never 
could repeat two lines of poetry in my life from mere 
memory." 



214 THE FORUM. 

Cicero, in the case of the prosecution of Verves, after 
great self-laudation, exclaimed, " So may the gods be 
merciful to me ! that whenever I think of the moment 
when I shall have to rise and speak in defence of a 
client, I am not only disturbed in my mind, but tremble 
in every limb of my body." This was also remarkably 
the case with Mr. Sergeant. For some minutes after he 
rose to open his argument in any important cause, he 
appeared to be oppressed, his hand shook, his lips qui- 
vered, and his whole frame seemed to be disturbed; but 
gradually a reaction took place, and when that result 
arrived, he was every inch an advocate — self-possessed, 
eloquent, confident, and generally successful. Indeed, 
it was observed once by Mr. Chauncey, in speaking of 
Mr. Binney, the friend and rival of Mr. Sergeant, 
"That he never lost a case that he ought to have 
gained, except when Mr. Sergeant gained a case, that 
he ought to have lost" 

Mr. Sergeant, in arguing a cause, however dry and 
barren, always united or intertwined so much feeling 
with it, as to secure the understanding through the in- 
fluence of the heart. He seemed to be on the bench 
and in the jury-box at the same time. His position, 
legal, political, social, and moral, rendered him almost 
invincible. He had a warm and affectionate heart, with 
a cool and meditative head. He was a man of great 
system, great delicacy, and consequently, great pro- 
priety. 



JOHN SERGEANT, L.L.D. 215 

The apparent modesty, not to say timidity, with 
which, as has been said, Mr. Sergeant approached an 
argument, had not only the example of Cicero, but it 
has been characteristic of many great men, indeed 
some of the greatest men in Parliament and at the 
bar. Charles James Fox, Townsend, Burke, and even 
Mansfield, manifested at least considerable hesitation 
in opening their speeches. A gentleman who was pre- 
sent when Fox made his famous speech upon the East 
India Bill, describes him as holding an old white hat 
in his hand when he commenced his speech, which, for 
more than fifteen minutes he so twisted, and turned, 
and pulled, that by the time he entered fairly upon 
the discussion, there was nothing in the shape of a hat 
left. 

This peculiarity leads us to consider its cause ; and 
we think it is attributable to the intensity of thought, 
drawing or driving the blood from the surface of the 
body to the heart. When nature recovers her tone, 
and reaction takes place, then it is that those great 
eiForts are produced that strike the world with wonder, 
and carry the speaker, as it were, even beyond him- 
self. So much does the mind afi'ect, and so much is it 
affected by, the condition of the body. 

"VVe have even high classical authority in support 
of our views on this subject, derived from Homer's 
description of a speech of Ulysses : — 



2\Q THE FORUM. 

" But when Ulysses rose in thought profound, 
His modest eyes he fixed upon the ground ; 
As one unskilled or dumb, he seemed to stand. 
Nor raised his head, nor stretched his sceptered hand ; 
But when he speaks, what elocution flows ! 
Soft as the fleeces of descending snows 
The copious accents fall, with easy art. 
Melting they fall, and sink into the heart !" 



In the case of youthful aspirants at the bar, it has 
been remarked, " that hesitation is a presage of future 
eminence ;" and it is undoubtedly true, that no man ever 
made a bold and confident first speech, with entire self- 
possession, whose last speech was worth hearing. He 
gradually gets worse instead of better, and no reaction 
being produced, and no difficulty surmounted, his sti- 
mulus to great efforts is diminished, instead of being 
increased, and mediocrity at most is his final reward. 
Remember, we say, " a confident speech, with entire 
self-possession." There have no doubt been many 
magnificent first efforts of young men, but they were 
always attended in the outset with great diffidence 
and trepidation ; and that very modesty imparts grace 
to intellectual strength, and renders it more effec- 
tive. 

There was one feature in the life of Mr. Sergeant, 
which, as indicative of the high moral tone evinced 
throughout liis whole life, we must not omit to notice, 
though it cannot be considered strictly as a professional 



JOHN SERGEANT, L.L.D. 217 

incident. Mr. Serjeant was a stockli older and officer 
in the Schuylkill Navigation Company. Having great 
confidence in the success of his enterprise, he invest- 
ed therein a large portion of his fortune. Matters 
proceeded for a long time prosperously; the stock 
advanced rapidly, and nearly doubled its original cost ; 
but soon after the Schuylkill and PottsvUle Railroad 
Company went into full operation, those who were best 
acquainted with these matters, saw that there must be 
an inevitable, rapid, and ruinous decKne in the value 
of the canal stock — a panic was the consequence. Many 
persons who were holders sold out their shares, and not 
only avoided loss, but secured no inconsiderable profit. 
It was timely proposed to Mr. Serjeant that he should 
follow their example. How little did those who made 
this suggestion appreciate the moral grandeur of his 
character. "No !" was his prompt and indignant reply. 
" I have launched my fortune in the same boat with 
others, many of whom have relied upon my opinion 
and my example, as to the probable safety of the in- 
vestment. There are many that can bear the loss less 
than I can ; but whether or not, I will not shrink from 
the common peril, and save my money at the expense 
of others, as well as of my own character. If they 
lose, I will lose ; and then no man can question the 
honesty and sincerity of my motive. Not a share of 
mine shall be sold." One such practical denotement 
of the principles of a man is worth a volume of ordinary 

VOL. II. — 15 



218 THE FORUM. 

theoretic benevolence — " Ojpum contemptor, recti per- 
vicax, constans adversus metus." 

It is doubtful whetber any man at tbe bar, or tbat 
ever was at tbe bar of Pbiladelpbia, enjoyed bigber or 
more deserved favor witb bis fellow citizens tban Jobn 
Sergeant. Wbile be was tbe pride of bis profession, 
be secured to himself tbe entire confidence of all to 
wbom be was known, and particularly tbose to wbom 
be bore tbe relation of counsel. He was kind and 
conciliating witb all, but tbe cbarms tbat more espe- 
cially recommended bim to popular regard, were bis 
frankness, simplicity, and warmth of feeling.* 

* In order to preserve the series of judicial pictures or outlines, we re- 
served our notice of Mr. Sergeant for this chapter. He does not depend 
upon place for his honors, but imparts honor to any place. He was not 
omitted because he was forgotten — but because he could not well be intro- 
duced among the ancients of the law, as his sun did not rise, until their'' s 
was declining. 



CHAPTER XL 



FORENSIC MEDICINE, OR MEDICAL JURISPRUDENCE-ITS IMPORTANCE 
TO LAWYERS AND DOCTORS. 



Theology, Medicine, and Law, are the three great 
sciences of life. The first is directed to our eternal 
welfare, the salvation of the soul. The second, to the 
preservation of our decaying bodies, in which the seeds 
of dissolution are planted with those of existence. 
And the third, to the safeguards of our lives, our lib- 
erty, our property, our health, and our reputation. As 
these sciences embellish, improve, and sustain each 
other, they should always be found together; to sepa- 
rate, is to destroy or impair them. Theology teaches 
us our duty to God. Medicine is designed to preserve 
our physical faculties, by which the mind is more or 
less affected in its actions, development and tendency. 



220 THE FORUM. 

And the law, wliicli is founded on the principles of 
theology, as apphed to human and temporal exigency, 
also necessarily embraces in its administration the dis- 
eases of the body, their effects upon the mind, and of 
course, their influence upon the question of mental 
competency, and civil and criminal responsibility. No 
one of these sciences is complete apart from its rela- 
tions to the others. God, the source and object of the- 
ology, is the great Law-giver, and the great Physician. 
It is oui' immediate purpose, however, to direct our 
attention to law and medicine, so far as tliey are con- 
nected with each other; and thereby to present, as the 
result of that union, a derivative branch of science, 
which may be properly denominated " Medical Juris- 
prudence, or Forensic Medicine." 

Medical jurisprudence, then, is the law, as applied 
to medicine. Men may be doctors, after a fashion, 
with no knowledge of the law. Men may be lawyers, 
without any other knowledge of medicine, than their 
own stomachs or experience may supply; but it is to 
neither of these classes of the respective professions that 
we address ourselves. A science is so called, because it 
is never fully acquired. We go on learning, learning, 
learning, until at last we reach the highest style of know- 
ledge — "knowing ourselves" — in other words, knowing 
how little we do, or can know. To succeed in a little, 
however, we must aspire to much — "in great attempts, 
'tis glorious e'en to fail." And we shall then be tested. 



MEDICAL JURISPRUDENCE. 221 

not by our perfections, for that is not the lot of man, 
but by our success in overcoming our imperfections. 
Our merits are relative. He who is the first of his 
class, is at least looked up to, however vast the regions 
above or before him that remain unimproved or unex- 
plored. The hUl of science is difficult of ascent — 
the course of instruction is a thorny one — it is no 
primrose path of dalliance ! but fix your eye upon 
the glorious summit, redolent with amaranthine flow- 
ers, and exhibiting on its time-honored brow all the 
colors of the rainbow, to light, and lead, and lure you 
on — and who then will fail or falter in the great at- 
tempt? Remember, always, that "wisdom is better 
than rubies, and all things that are to be desired, are 
not to be compared to it." 

But to proceed to our duty : — 

1. What, then, are the necessities for this branch of 
knowledge ? 

2. What are its objects ? 

3. What its probable results to the profession and 
mankind ? 

To ascertain the necessity for this branch of science, 
visit the lecture-room or the forum — there you will find 
the disciples of the one, for the most part totally unac- 
quainted with the mysteries of the other; in short, often 
boasting that they know nothing about them. We have 
heard a lawyer thank Heaven that he knew nothing 
about medical science ; and a doctor equally pious in de- 



222 THE FORUM. 

daring his utter ignorance of the law. It is, to be sure, 
gratifying that such men, in the language of Franklin, 
should have grace enough to " thank Heaven for any- 
thing ;" hut, nevertheless, it exhibits a most wanton 
and unpardonable stupidity and folly. The confession 
might at all events be spared, since the fact is gene- 
rally so obvious. What does a humdrum lawyer know 
of the brain, of the nervous, osseous, muscular, or san- 
guineous system, of the membranes, or coats of the 
stomach, of the heart, pericardium, tissues, liver, lungs, 
viscera, etc. ? — comparatively nothing, either in their 
separate or joint structure, to say nothing of their in- 
fluence upon each other or the entire system. Why, 
we have seen a lawyer in raptures, in trying an indict- 
ment for murder — the blow having been laid as struck 
on the right side of the head — to find that the import- 
ant fracture of the skull was on the left side. What 
did he know of the action of the counter stroke, which 
exhibits the effect in another and opposite direction 
from that which presents the cause. He knows no 
difference between strangury and strangulation — hy- 
drocele and hydrocephalus. Nay, more, he knows 
nothing of the influence of bodily infirmity upon the 
mind, or of the influence of the mind upon the state 
of the body. How, then, can he try questions of 
murder, involving life — or questions of insanity, fatuity, 
senility, or idiocy ? — as sometimes affecting life, and 
oftener controlling the disposition of property by will, 



MEDICAL JURISPRUDENCE. 223 

or the validity of contracts, the most solemn and im- 
pbrtant. When ignorance is exercised upon such lofty 
and complicated subjects, a fool becomes worse than a 
madman, and both often perish together. 

In these deficiencies, we have not referred to meta- 
physics. When physics are incomprehensible, meta- 
physics are unapproachable. In this state of things, 
what can you expect from an examination of witnesses, 
the sources of light upon most inquiries ? Absolutely 
nothing. The witness does not know what the lawyer 
desires to prove, and the lawyer does not know what 
he requires to prove himself. Truth and justice may 
sometimes prevail, notwithstanding, but instead of this 
being a trial, it is a mere game of chance, in which 
folly throws the dice, and the gallows attends the 
sequel. In France and Italy, no man is permitted to 
practise in the criminal courts, without undergoing an 
examination, and establishing a familiar acquaintance 
with the principles of forensic medicine. Now what 
is to be said of the doctors ? We don't mean them 
all — Heaven forbid! — but the masses. They are 
generally the witnesses most relied on, in those mat- 
ters to which we have referred. Their ostensible 
skill entitles them to great weight; their general 
character, and freedom from prejudice, adds much to 
that weight ; and thek responsibility therefore is pro- 
portioned to their power — to their pretensions. How 
is it met? In cases of insanity, epilepsy, apoplexy, 



224 THE FORUM. 

mania-a-potu, anatomy, surgery, etc., etc., pregnancy, 
palsy, toxicology, botany, and chemistry. 

They come into court standing upon their guard against 
what they erroneously believe to be the tricks of a sister 
profession ; and instead of relying upon thek fulness of 
knowledge and light, they are distracted by the desire 
to avoid an appearance of ignorance upon any matters 
of inquiry. We never knew but one physician that 
replied, " he did not know." They all prefer specu- 
lating, though life and property may often depend 
upon then" speculations. There are two miracles never 
yet witnessed — a physician that knows everything, 
and one who will confess he does not know everything. 

We have asked a doctor, whether a shght cut of a 
finger was dangerous ? Well, he must first know what 
we mean by " danger',' as if the words did not convey 
their own meaning ; and finally, he will tell us of the 
apparent disproportion between cause and effect, gan- 
grene and lockjaw, and the whole tissue of evils that 
may possibly arise, and thus override all probabilities 
by an imaginary possibihty. He is so careful that he 
adopts Hotspur's doctrine, that it may be dangerous 
" to eat, to drink, to sleep," and the question and the 
answer both go for nothing. Where is the difiiculty 
in saying a slight cut of the finger is not dangerous ? 
The whole difiiculty arises in considering what use is 
to be made of the answer, rather than what plainly 
should be the answer. Time is thus occupied unpro- 



MEDICAL JURISPRUDENCE. 225 

fitably by the suspicious and useless anxiety of the 
tvitness. 

" Is it possible, doctor, for an unsound mind to reside 
in a body that is undoubtedly sound ?" His answer 
was, he could conceive of such a thing. What a con- 
ception ! Why not answer, he didn't know. He did 
not dare to confess ignorance, and he therefore, to 
shield himself, conceived of that which no other man 
in his senses could have conceived; as it appears to 
be well settled among the truly scientific physicians 
and metaphysicians, that the mind is never impaired 
in its action, except through the disordered functions 
of the body. If the mind in itself could be diseased, 
it could die — a supposition directly opposed to the 
sublime doctrines of the immortality of the soul, and 
therefore utterly to be rejected. A distinguished phy- 
sician in New York, upon being asked how fevers were 
divided, replied, "there are many kinds of fevers." 
He had to be reminded that they were classed under 
the heads of idiopathic and symptomatic; and upon 
being further inquired of, to what class typhus fever 
belonged, assigned it to the symptomatic class. "What," 
asked the counsel, "is it symptomatic of?" "Of the 
climate,'' was the reply."^' Much more commendable 
was the testimony of a very learned surgeon of this 
city, who, in a case of murder, in which the defence 
rested upon the allegation that the deceased had com- 

* Frost's Case. 



226 THE FORUM. 

mitted suicide. There the counsel, absurdly enough, it 
is true, asked the doctor, what were the general indi- 
cations of death from violence ? to which he replied, 
"' my knowledge will not enable me to answer so broad 
a question." Shakspeare has furnished the best answer 
that I know of in his description of the death of Glo'ster, 
where the question was, whether the deceased died 
from natural causes, or from violence. {Henry 6, act 
3, scene II.) — 



" See how the blood is settled in his face. 
Oft have I seen a timely-parted ghost 
Of ashy semblance, — meagre, pale, and bloodless, — 
Being all descended to the laboring heart, 
Who, in the conflict that it holds with death, 
Attracts the same for ordnance 'gainst the enemy. 
Which, with the heart, there cools, and ne'er returns 
To blush and beautify the cheek again. 
But see ! Ids face is black and ykZZ of blood ; 
His eyeballs further out than when he lived, 
Staring full ghastly, like a strangled man ; 
His hair upturned, his nostrils stretched with struggling ; 
His well-proportioned beard made rough and rugged. 
Like to the summer's corn by tempest lodg'd. 
It cannot be, but he was murdered here I 
The least of all these signs were probable." 



From these brief remarks, the necessity for a know- 
ledge of medical jurisprudence will be entirely obvious 
to every intelligent mind. Separated entirely from 
each other, medicine and law leave a gap " for ruin's 



MEDICAL JURISPRUDENCE. 227 

wasteful entrance." A doctor who knows nothing of 
law, and a lawyer who knows nothing of medicine, are 
deficient in essential requisites of their respective pro- 
fessions. 

Now, what are its objects? We answer, in the 
general, to meet these necessities ; to promote practi- 
cal skill in medicine and in law ; to render both more 
certain, and to magnify both, instead of permitting 
them to remain a by-word and reproach. To engraft 
so much law upon medicine as may improve the stock, 
and to infuse so much medicine into the law as may 
purify, strengthen, and improve its administration. 
Both the sciences shall thus grow brighter in reflected 
light, and both shall conduce, to the mutual support of 
each other, to the lasting benefit of mankind. 

It is not to be expected that the medical faculty 
should desert their appropriate sphere, for the purpose 
of attendmg courts of justice, and ascertaining, in the 
diversities of litigation, the apphcation of those legal 
rules by which medical testimony is to be governed. 
Nor is it to be supposed, that in their exclusive devo- 
tion to their own practice, they can be fully aware of 
the various and multifarious occasions that present 
themselves for the exercise of the highest departments 
of their knowledge, in the civil and crimuial issues 
submitted to judicial tribunals. Perhaps it is still 
less to be imaguied that lawyers in full practice, or 
even in the expectation of full practice, should aban- 



228 THE FORUM. 

don the forum to attend daily upon the learned and 
instructive lectures, which the various and distinguish- 
ed medical schools so abundantly afford. A course or 
two on Chemistry, Surgery, and Anatomy, assisted by 
a httle incidental reading, would, at the most, be all 
to which they could apply themselves. Indeed, it 
would rarely happen, that even these opportunities 
could present themselves, or be enjoyed. Hence it 
becomes apparent that lectures upon Medical Juris- 
prudence, "the zone of both sciences," which will em- 
brace all that is necessary of the law as well as medi- 
cine, in order to the improvement of the professors of 
both, will furnish facilities for the acquisition of prac- 
tical knowledge, which, independent of such a profes- 
sorship, must be utterly unattainable. Ten lectures 
in a course, one every fortnight, continuing through 
four or five months, would make a very inconsiderable 
draught upon the time and attention of the busiest 
man ; and especially if the evening be selected for the 
time of lecturing. The advantages of a single course 
of such instruction, with moderate experience and com- 
petency in the preceptor, would be of incalculable 
value. It would form a connecting link between the 
students of both professions, that would exercise great 
influence upon the prosperity and harmony of both — 
mutual good understanding would be promoted — mu- 
tual confidence secured — and mutual and individual 
duties much more satisfactorily performed. The efi'ects 



MEDICAL JURISPRUDENCE. 229 

of such an example would be to stimulate the indif- 
ferent or supine into emulation, and the sciences would 
then become what they were designed to be, the most 
precious earthly blessings enjoyed by man. We can 
understand why doctors should not always live in 
entire harmony with each other ; why those of different 
schools should rarely shake hands, unless in consulta- 
tion. But we can see no possible reason why phy- 
sicians and barristers should not agree. There can be 
no jealousies, or heart-burnings, or slanders between 
them. They move along pari passu, in parallel lines 
towards eminence in their respective professions. They 
never come into conflict, except with a joint object, 
and that object should reconcile slight differences. 

But, in opposition to some of these views, drones 
and sciolists will tell you, that no man can be a lawyer, 
a doctor, and a divine ! That study must have an espe- 
cial and exclusive destination. This is a great mistake. 
No one branch can secure eminence, still less can it do 
so when it is singular in its application. It may secure 
distinction; but distinction is not eminence. It is in 
their union that the powers of the mind are wrought 
up to their highest excellence, and that human nature 
would seem to entrench upon the dignity of angels. 
The mind can embrace almost any thing it inclines to. 
Instead of beuig exhausted by its labors, it is invigo- 
rated; instead of being encumbered by diversity, it 
is often relieved; instead of being diminished in its 



230 THE FORUM. 

capacity, it is enlarged. Like charity, the more it 
gives away, the more it has : 



" For no man is the lord of anything, 
Though in and of him there be much consisting, 
Till he communicate his parts to others ; 
Nor doth he of himself know them for aught, 
Till he behold them formed in the applause 
Where they are extended, which like an arch reverberates 
The voice again, or, like a gate of steel. 
Fronting the sun, receives and renders back 
His figure and his heat." 



Now, what would he the result of the course sug- 
gested to the profession and the country ? First, the 
college in which such a professorship should he estab- 
lished, would enlarge its sphere of usefulness, attract 
scientific and public attention, and secure, in proportion 
to its fame, an increase of its emoluments ; for, in this 
money-loving country, this would seem to be the butt 
end of every blessing — the great motive power to all 
physical and intellectual effort. 

But this is not all. To look to it individually, it 
would have a tendency to enlarge practice. Proficiency 
in every additional branch of science, secures new 
adherents, new patients, and new claims upon public 
patronage. As one science is important to another, so 
each branch of the same science imparts its aid to the 
other branches, and in their perfect and luminous com- 



MEDICAL JURISPRUDENCE. 231 

bination, like heavenly constellations, they borrow and 
shed lustre upon each other and the world. 

These advantages are equally important to the law- 
yer. His profession is elevated and magnified by them 
— his practice increased. The drones of the law are 
either lost sight of in the splendor of his achievements, 
or serve merely, like a cloud margining the sun, to 
render his effulgence more striking and more glorious. 

A defendant is accused of murder by violence. The 
great question is, whether the death resulted from 
disease, or from the dagger ? or, whether the defendant 
was non compos mentis, or poison is alleged to be the 
agent resorted to to produce death ? Arsenic, antimony, 
mercury, or laudanum is imputed to the case. The 
stomach, the liver, the heart, the brain, the entire 
tissues are to be examined. How is this to be done ? 
No bungler can do it. A bungling physician, and a 
bungling lawyer, mixed up together, are more danger- 
ous than the assassin's dagger, or the poisoned bowl. 

With competency in medical jurisprudence, the mere 
business of a lawyer, relating to matters connected 
with the subjects we have referred to, would furnish 
him with a sufficient, nay, an abundant income, exclu- 
sive of all other practice. But if in itself it be attended 
with these benefits, what shall be its results when 
united with general scientific accomplishments ? What 
competition would such a man apprehend ? Prepared 
at all points, he takes the field ready to encounter 



232 THE FORUM. 

difficulty^ disease, and death, in all tlieir various and 
hideous shapes. His armor is the armor of Achilles — 
nay, he is not even vulnerable in the heel ; and if he 
were, he has no cause for fear, for he never turns his 
hack upon his adversaries, but confronts and fights the 
battle to the last. What a glorious spectacle ! — the 
. immortal part of man struggling to subdue mortality ; 
struggling not to destroy, but to preserve ; standing 
between the grave and its victim, and summoning to 
his aid the vast resources which days, and nights, and 
years of devotion- — of toil — have accumulated and 
strengthened. But this is not all. Look to the reverse 
of the picture, if you would consider it in all its glory ; 
look at the ignorant and careless, or indifferent practi- 
tioner — frightened at the patient, frightened at the 
disease, frightened at everything but his own folly. 
In such circumstances can it be wondered at, that the 
patient often dies of the doctor, or that the lawyer 
twists the halter for his own client, and that, too, with- 
out remorse or shame. Yet is not this the worst of 
murder? — murder in cold blood; murder with malice 
prepense ; murder not only against unoffending men, 
but against those who have relied upon your friend- 
ship — who have trusted to your skill — who have con- 
fided in your sympathy — who have thrown themselves 
into your opened arms for promised protection. The 
man who would betray such a reliance as this, should 
abjure his name, as he has abjured his nature. He 



MEDICAL JURISPRUDENCE. 233 

should abandon his profession, of which he is an ill- 
deserving member, and turn to the trade of an under- 
taker or a hangman, which, requiring less skill, would 
imply greater competency, and certainly much more 
congeniality with his studies and his tastes. 

But what are we to say for the results to the com- 
munity ? What are they to think upon this interesting 
— this vital subject ? Is their liberty, property, health, 
or reputation, of any regard ? Who is the warder of 
that castle, wherein all their hopes in these respects are 
deposited ? Who holds the key of the great citadel ? — 
" where either they must live, or have no life." Is it 
one who sleeps upon his post, or who does not know 
the watchword, or who opens the portals to every 
enemy ? one whose vigilance and fidelity have never 
been tried, or never been vouched? one who cannot 
guard his own poverty, and therefore cannot guard 
their treasures ? one who is bhnd, and deaf, and dumb, 
to aU the requisites of his post ? If such is to be your 
choice, inevitable destruction must await the sequel — 
not only destruction to you, but yours ; not only to 
them, but theirs — so broad, and general, and compli- 
cated, is the mischief that often — too often — ensues 
upon the first false step. Let the public look well 
to this. No one can guard them against these con- 
sequences without their will ; no one can redeem them, 
even tvith their will. Quackery may be cheaper — 
lighten the purse less — ^but it makes the heart heavy; 

VOL. II. — 16 



234 THE FORUM. 

yet there is still this consolation, that, while it affords 
no rehef to the disease, it affords speedy relief to 
the patient or client, by conveying him to a prema- 
ture grave, or a sohtary cell, in which his suffering and 
folly are ahke forgotten. 

But let us turn to things as they should be, not as 
they generally are. It is appointed for aU men to die, 
but not by the lawyer or physician ; that is no part 
of the sentence of the Almighty Judge. Still, men are 
to DIE. The late distinguished Dr. Rush seemed to 
consider it a reproach to medicine, that human life 
should not be prolonged to the scriptural limit, except 
in those cases of accident and casualty incident to 
mortal concerns, among which, professional neglect or 
unskilfulness has modestly been omitted. 

There is another subject alike important to lawyers 
and physicians, and we regret to say, too much ne- 
glected by both. We mean eloquence — vital to one, 
and most useful to the other. 

Forensic medicine may appropriately embrace inci- 
dental instruction upon the advantages of an agreeable 
elocution. Eloquence is certainly not to be disregarded 
by a physician, when it is recollected that a composed 
mind exercises great influence over the diseases of the 
body. By eloquence, a physician may sweeten his 
physic, and render palatable the nauseous draught. 
You may have all heard it said of the venerable physi- 
cian just referred to, that his manners and address were 



MEDICAL JURISPRUDENCE. 235 

SO sootliing and so bland, that liis cures were sometimes 
as much attributable to his eloquence as to his pre- 
scriptions. This by some may be called womanish 
and weak, particularly by the disciples of Radcliif, 
Bell, and Sir Astley Cooper, nevertheless, it is de- 
serving of imitation. Dr. Parrish was another example 
in this respect; and indeed, we are most happy to say, 
that a departure from it is rather the exception than 
the rule with the medical profession generally. YV^hat 
we contend for, however, is, that it should be uni- 
versal. It is not merely a duty, but a privilege, to 
smooth the pillow of pain ; to console the afflicted 
mind ; to strip death of his terrors ; and to slope the 
way to the last, narrow, silent house, prepared for all 
living. 

It is exceedingly important to a physician, in his 
character of a witness, to bear in mind that his obhga- 
tions are in proportion to his skill and character. Upon 
his smgle voice, not unfrequently, everything valuable 
in life, and, indeed, life itself, may depend. He must 
not allow the general circumstances of the case, or 
what is called its moral or legal bearing, to influence 
or affect his medical determination. He has no right 
to give any opinion upon any other portion of the case 
than that which is strictly within his own scientific 
limits. And yet we have heard a most intelligent and 
honest physician, and withal a humane man, state to 
a jury, that "not from the stomach alone, the symp- 



236 THE FORUM. 

toms alone, but from those comUned with the general 
state of the facts, he came reluctantly to the opinion 
that the deceased was poisoned." This he had no right 
to say, for it was the exclusive and peculiar province of 
the jury ; and any invasion of it is not only a viola- 
tion of the principles of the constitution and laws, hut 
exercises too often a controlling influence over the 
destiny of the accused. 

The jurymen shelter themselves under the opinion 
of the doctor, ignorant of their own privileges and du- 
ties, and not observant of the defendant's rights ; and 
the doctor thus being supreme in matters of science, 
forgets his limits, and often spreads a ruin around. 

Whenever there is doubt or equivocation in experi- 
ments, the defendant should enjoy the benefit of the 
doubt, and it should be yielded to him not grudg- 
ingly but freely — bis dot qui cito dot. 

The condition of a scientific witness must be most 
awful, who gives any other opinion than that which is 
infallible. Opinions in cases of poisons we have always 
considered highly questionable, and requiring the ut- 
most possible care, and especially in the application of 
new systems, that even have not undergone the test of 
time and experience. No doubt, Branch's test will re- 
duce arsenic to the metal; but the metal may be in the 
copper, in the muriatic acid, in the porcelain, in the 
glass tube, or in the nitrate of silver, or the sulphate 
of copper. There is a vast difference between what 



MEDICAL JURISPRUDENCE. 237 

may serve for mere chemical purposes, and what is 
requu'ed as the basis of a judicial opinion directly 
involving life. There is also a great difference between 
reducing the arsenic where you have deposited arsenic, 
and of course know its existence, and reducing the 
arsenic where you are embarrassed by animal, and 
vegetable, and mineral substances, all combined toge- 
ther, and attended by the phosphates, alkalies, etc. 
Science does enable you to say that arsenic may be 
present, but it does not enable you to say that what 
you take for arsenic is nothing else. There are more 
things in heaven and earth " than are dreamt of in your 
philosophy ;" and new combinations or new substances 
may so simulate poison, in the application of your dry 
and liquid tests, as to confound one substance or 
metal with another. As far as you go, you may dis- 
tinguish, by means of the tests ; in other words, you 
can show what it will detect, but you cannot show 
what it will not \ and the one is just as necessary as 
the other, in many of the questions that arise.* 

Another matter is to be regarded. Remember that 
the prosperity of your testimony lies in the ears of the 
Court and jury. That if they do not understand the 
views you intend to convey, then either no idea is 
conveyed, or the idea is subject to be perverted to 
some unjust and unreasonable result. How is this to 

. * Vide Chapman's case, in which mercury was mistaken for arsenic. 



238 THE FORUM. 

be avoided ? Only by the most e;x:plicit communica- 
tion of your views. By explaining the Latin and 
technical terms which you may use; call water — water ^ 
salt — mlt, potash — -potash; or give them chemical 
names, and then interpret them. So in all terms of 
anatomy and surgery, physiology and pathology. Thus 
you will be fully comprehended, and avoid the mis- 
interpretation by ignorant counsel, or the misapplica- 
tion by a stupid jury. Of all things earthly, the 
affected jargon of the schools is to be avoided in all 
matters of popular consideration, and especially in all 
matters of judicial inquiry. It was intended partly, 
as Shakspeare says, "to guard the fruit that priests 
and wise men taste," and not to enhghten the unso- 
phisticated or uninformed. 

Physicians and lawyers should always remember that 
they are men. And they should, of course, remember 
those sympathies which bind them to the great family 
of man. We differ with those who maintain, that rigid 
duty requires a stern and rigorous deportment in the 
exercise of the functions of counsel or witness. Prose- 
cutions should be conducted firmly, but with great 
moderation, forbearance, and humanity. So far from 
this being incompatible with justice, it is calculated 
to dignify and embellish it. Doctors, instead of giving 
an opinion that poison or wounds produce death, might 
pronounce, if the case required it, that they were suffi- 
cient to produce death; but they should not be un- 



MEDICAL JURISPRUDENCE. 239 

mindful tliat more than one cause of death may exist 
at the same time, and that it is not the cause of death, 
but the actual result of that cause, that constitutes the 
offence of homicide. A case, for instance, is reported, 
upon unquestionable authority, of the detection of 
arsenic in the stomach of a deceased man — sufficient 
to produce death ; but upon a careful post mortem ex- 
amination, it was found that the individual had actually 
died of apoplexy — a result totally disconnected with 
the imputed crime. Now, although the administering 
poison with intent to kill was undoubtedly a high mis- 
demeanor, it was no homicide, inasmuch as it was not 
productive of the death of the intended victim. 

Where, in cases of metallic arsenic, the metal is alleged 
to be produced, it should, after being tried by the liquid 
tests, be reproduced, and then exhibited upon the trial, 
for the purpose of abiding by such other tests as may 
be necessary in the judicial determination of the sub- 
ject. The Court might appoint medical commissioners 
for the purpose of testing the tester, and thereby many 
lives might be saved, or at least the decisions of courts 
of justice rendered much more secure and satisfactory. 
Life cannot be surrounded with too many safeguards. 
The ghost of one man is not to be appeased by the un- 
just sacrifice of a score who are innocent. A physi- 
cian should be particularly careful not to rely upon 
new-fangled systems or experiments. They require 
the tests of time, and experience. There is no diffi- 



240 THE FORUM. 

culty in saying, for mere chemical purposes, that Marsh 
or Branch's process will produce arsenic when it exists ; 
but we doubt much whether they can be judicially 
rehed upon, even with the aid of -the liquid tests, 
in determining the question whether the human sto- 
mach contained arsenic. Before this can be done, it 
should be clearly shown that no other substance could 
simulate the arsenic in the result of the tests. The 
evidence should be exclusive. Chemical science is, in 
some cases, very far from being certain, and is hable 
to be affected by what is called the collateral evidence 
of the case. 

We have thus, in a hurried and an imperfect way, 
presented to the view the necessity for the study of 
forensic medicine — the objects to which it should be 
directed, and the ]3robab]e beneficial advantages by 
which it will be attended. We have not attempted to 
enter into details, nor to point out the legal duties of 
a physician, in his attendance upon the insane, the 
sick, and the dying ; his duties in regard to donations 
onortis causa, in other words, oral gifts, made by pa- 
tients in their anticipation of death; the subject of 
nuncupative wills, or those directions which are given 
in regard to property, where the suddenness and ex- 
tremity of the peril of death are such as to forbid the 
patient to make a formal and regular disposition of 
his estate. We have not dwelt upon the mode of 
drawing wills, and upon their essential requisites, as 



MEDICAL JURISPRUDENCE. 241 

regards the testator, the nature of the devises or lega- 
cies, and legal execution of the documents ; nor upon 
post mortem examinations, in cases of violence, or sup- 
posed unnatural death — the organization and duties of 
the coroner's inquest — the character of the proceeding 
— the nature of the evidence to be submitted to them 
— the testimony of the examining physician — the ver- 
dict and finding of the inquest, and the operation of all 
upon the subsequent trial of the accused; yet, all these 
are matters of deep and dangerous concernment. 

Lawyers are often compelled to carry the cases 
referred to through the courts — examine into the 
doctrine of dying declarations — discuss the question, 
how far the physician can be compelled to relate the 
confidential communications of his patients — in what 
cases he has the right to give his opinion upon his 
own knowledge of facts connected with the supposed 
homicide, and how far he may give his judgment as to 
the cause of death, as related by others. All these, 
therefore, require attention. But they would require 
a volume, instead of an essay, to do them full justice. 



CHAPTER XII. 



GOOD FELLOWSHIP OF THE BAR. 



A MORE united, liberal, and harmonious body of men, 
than those who compose the legal profession — in which 
we embrace judges, as well as barristers — has never 
been known. We speak, of course, of those who le- 
gitimately belong to the bar, and who are attached to 
the law as a science, and not as a trade; who, in short, 
form, as it were, the forensic family. Durmg nearly 
half a century of general and diversified experience, 
at home and abroad, we have no recollection of any 
serious or irreconcilable difference — to say nothing of 
hostihties — at the bar. When it is considered that 
there are more than twenty thousand lawyers in the 
United States — ^that they represent different and op- 
posite interests — that they are educated in different 
schools — are of different temperaments — difierent breed- 
ing, and different passions, it is truly remarkable, if 



GOOD FELLOWSHIP OF THE BAR. 243 

not wonderful, that the relations among them should 
be so invariably amicalle, and we may say, cordial. 
This is, perhaps, more than can be truly said of any other 
equally extensive body of scientific or literary men. 

The medical faculty present the very reverse of this 
picture. Their bickerings, jealousies, and hostilities, 
have become proverbial, and are acknowledged even 
among themselves ; and we have heard it not unaptly 
said, that they have rarely been known to shake hands 
together, except in consultation. And it is far from 
certain — we say it with regret — that even the mem- 
bers of our holy religion agree half so well, or seem 
to appreciate each other half so generously and highly, 
as the disciples of jurisprudence. 

Before we proceed to inquire what is the reason 
of this unity among the members of the bar, let us 
ascertain to what the want of it is to be attributed, 
among the sister sciences. Doctors of medicine and 
of divinity, agree well enough with each other, and 
both agree with the legal profession; but neither of 
them agrees within itself. The cause of this deplor- 
able effect would seem to be this : — The members 
of the medical profession have no common tie — no 
bond of union. They don't meet together daily; 
and therefore are not equally social. Their inter- 
course with each other, is often through their patients ; 
whereas, the intercourse of clients, is mostly through 
their counsel. Doctors belong to diiferent and conflict- 



244 THE FORUM. 

ing schools in their own State, or rival schools, in dif- 
ferent States or quarters of the country. Each class 
maintains its own infaUibility and supremacy. The law 
has but one school, and in that justice presides ; she 
hears, and she determines controversies, which, other- 
wise would result in endless and cureless feuds. 

Again, medical men mingle less in general society, 
while they have but little society among themselves. 
Their labors are more secluded and contingent — they 
are not brought so much into pubHc Hfe, into that 
popular intercourse, that by attrition removes those 
asperities that keep men asunder. Their knowledge 
is not so general or so available for the ordinary pur- 
poses of life ; they know more of disease, but less of 
men. They are rarely found in the halls of legislation 
— in political or philanthropic assemblies — in high offi- 
cial stations; all of which are important schools for 
instruction, and cause men to know each other better, 
and mutually to admii^e each other's virtue, or excuse 
their faults. The more a man knows of the world, 
the more easily and agreeably he passes through it — 
plucking its flowers and avoiding its thorns. A doctor 
goes to a party as if he were visiting a patient, or as 
if he anticipated one. There is, in. short, a solitariness 
in his pursuits, that would seem in its influence to confine 
him within himself. He is cautious ; he is punctilious : 
his colloquial powers have been confined to the narrow 
and gloomy limits of sick chambers — ^agony and death. 



GOOD FELLOWSHIP OF THE BAR. 245 

Unlike lawyers — doctors never change sides — they are 
for the most part alone. They may be misrepresented 
or slandered by ungenerous rivals, or reproached by 
ungrateful patients ; and as their services are rendered 
in private, there is no public to redress their wrongs 
or vindicate their rights. They are more dependent 
upon patronage and family influence ; they have but 
few opportunities of forcing themselves upon public 
notice ; and if we may say it reverentially, the world 
neither "seeth in secret, nor does it reward them 
oiwnlyy In all these respects, without individual no- 
tice, it may be said, the members of the legal profes- 
sion enjoy a decided advantage over their medical 
brethren. 

Then, as to ministers of the gospel — the great healers 
of the spirit — to whom we are indebted for instruction 
in the means of eternal salvation. They are men — 
good men, undoubtedly — but still impaked in their pure 
and sacred ofi&ces by human infirmities. Their holy zeal 
is distributed into different sects — they adopt different 
creeds — adverse forms — modes of faith. They are, of 
course, not men of the world. Their religion is un- 
doubted, but they sometimes require practical philoso- 
phy, not to secure their own salvation, but to allure the 
wayward sinner to redemption. Philosophy, it is true, 
is no substitute for piety, but it may sometimes aid her 
divine influence, and assist her in her blessed work. 
Though not men of the world — and certainly not to 



246 THE FORUM. 

borrow "the livery of Satan to serve Heaven in" — they 
might so much adapt themselves to the innocent agrea- 
mens of life, as to take from their profession its fancied 
ascetic character, and thereby overcome the resistance 
of the recusant. Heaven forbid, that one jot of cleri- 
cal sanctity should be waived; but if a minister of 
salvation is not cheerful and hopeful in his divine 
work, who should be ? Many of our clergymen have 
experienced the benefit of the social vu^tues, and that, 
too, without abating one jot of the dignity that pro- 
perly appertains to their high calling. 

We would not, as has been said, have a worldly 
minister; but there is a vast disparity between a 
worldly man, and a man with full knowledge of the 
world. A worldly man does not know the world, and 
a man who does know it most, likes it least. Clergy- 
men are subjected to many of the disadvantages of 
physicians ; they mingle but comparatively little with 
their feUow men upon an equal social footing ; they 
are under obvious constraint ; they engage in no public 
employment, and hold no worldly office ; they have no 
political position or influence ; they hold and hear no 
discussions; they issue their decrees ex cathedra; their 
conversations are didactic; they perhaps keep them- 
selves in too much reserve " for ministers of grace to 
guilty men ;" they should relax their rigidity ; add the 
example of humility to its precept, and neither stand 
too far off from their penitents or each other. This 



GOOD FELLOWSHIP OF THE BAR. 247 

would be mucli more compatible with tbeir heavenly 
vocation, than to divide and split their holy mission 
upon questions of unessential forms, or the mere out- 
ward trappings of rehgion. 

One of the greatest mistakes that Christian profes- 
sors make is, in appearing to suppose that acerbity is 
essential to the performance of their divine office. 
That is not the lesson taught by their Great Exemplar. 
Although described as a "man of sorrows, and ac- 
quainted with grief," his earthly career exhibited no 
moroseness, no asperity, nothing but the most consum- 
mate gentleness, tenderness, and humility. 

" He held it more liumane, more heavenly far, 
By winning words to conquer willing hearts, 
And make persuasion do the work of fear — 
At least to try and teacli the erring soul, 
Not wilfully misdoing, but unaware misled — 
The stubborn only to subdue."— ifiZfow. 

So should it ever be with his followers. That man 
who secureth Heaven, who has God on his side, should 
certainly be beyond the reach of the paltry annoyances, 
anxieties, and animosities of sublunary Mfe. His conso- 
lation is in the communion with the realms above ; and 
he should look upon this world as a passing pageant, 
every advance and change of which brings him one 
stage nearer to his eternal home. 

But to come to the members of the bar, and their 



248 THEFORUM. 

good fellowship — the chief cause of their harmony 
consists in their being constantly before the public, 
and subject, in all they do, to the influence of public 
approval or reproval. They intermingle with and are 
necessary to men, in almost all the relations of life. 
Their deportment, as well as their talents and bearing, 
form a part of their professional capital. They have 
constant and various opportunities for the display of 
their abilities. They live with, as they live by, the 
community. Their clients are their friends, and their 
friends are their clients. One day they are profes- 
sionally opposed to a legal brother ; the next day they 
are engaged with him. They consult together, they 
reason together ; they enter into an honorable profes- 
sional competition or opposition; they become ac- 
quainted with their respective powers. It is almost 
impossible to continue long in a state of actual personal 
hostility to each other. Their clients and their business, 
necessarily bring them into amicable relations 5 and in 
addition to all this, the true interests of the entire bar 
are adverse to feuds and resentments. We shall be 
told that there is among them often great keenness 
and excitement in debate, and sometimes great seve- 
rity of remark ; but from the mutual liability of 
counsel thus to be betrayed into temporary passion, 
they are taught mutual forbearance and forgiveness. 
The judge pronounces the charge, the jury give their 
verdict, the battle is lost and won, and the irritation 



GOOD FELLOWSHIP OF THE BAR. 249 

of counsel is passed and forgotten. This is as it should 
be — the profession could not otherwise exist. 

It is a vulgar error to suppose that the excitement 
and animation of an argument and zeal on the part of 
opposing interests, indicate anger or hostihty. Speech 
may he said to he the safety-valve that relieves the 
bosom of its pent up passions, and prevents the rank- 
ling of enmity and revenge. Who has ever seen a 
lawyer utterly lose his temper upon the trial of a 
cause? The loss of self-control is the precursor of 
defeat. We should allow no one to be the master of 
our temper but ourselves. One thing is very certain, 
and that is, that an irritable, passionate man, will get 
but little business after he is known, and soon lose the 
little he gets. But that is not the worst of it; he 
renders himself unhappy, as well as others. Others 
will soon avoid him, but he cannot get rid of himself, 
so that, in the end, he is the chief sufferer. 

No client would be safe in trusting the management 
of his cause to a lawyer who is incapable of self- 
government. By a shrewd adversary, who is fami- 
liar with his failing, he is constantly thrown into con- 
fusion, and finally, his intellects are only restored to 
their harmony and equilibrium, to witness the wreck 
which his foUy or frenzy may have made. 

Further than this, an irascible lawyer not only is 
shunned by the profession, but he quarrels perpetually 
with his best clients j and finally, to introduce a marine 

VOL. II. — 17 



250 THE FORUM. 

figure, having neglected Ms chart, his compass, and his 
helm, he lies stranded on a lee shore. 

It is a conviction of the truth of this doctrine, that has 
largely contributed to that decorum and affability, by 
which the bar is generally characterized. It is to their 
profit and credit, and their comfort at the same time. 
And it makes them what we trust they may always 
remain — the example and the pride of the community. 

The result of this professional harmony is the 
greatest mutual confidence. They rely upon each 
other's word as an infallible bond. As between them- 
selves they rarely require any writing as an assurance. 
They neither doubt nor are doubted. This, among the 
other lofty principles of the profession, has secured 
them here and everywhere a position which neither 
envy or calumny can ever destroy or impair. 

There is one other matter to which, in closing, we 
may properly advert, and that is the benefit arising 
from their daily congregating or assembling at court, 
cheerfully greeting one another — condolence upon 
losses, or congratulations upon forensic victories. The 
young cheered and stimulated by the example of the 
old — the old aided and assisted, and reverenced by the 
young. Mutual dependence upon the kindness and 
favor of each other. The spotless retrospect of a well- 
spent life imparting cheerfulness to the aged, and the 
bright vista of foreshadowed success opening upon the 
youthful, while Hope bedecks their brows with the 
choicest garlands of professional honors. 



CHAPTEE XIII. 

A BRIEF YIEW OF ENGLISH AND AMERICAN PRACTICE. 

The Roman law, or the Jus Civile, consisted of the 
oral or written opinions of lawyers, who expounded 
the doctrines of the law, and informed their fellow citi- 
zens of their rights and liabilities. From this informa- 
tion, imparted either at their study, or, as more usually 
happened, while walking up and down the forum, or as- 
sembled in the atrium, the youthful advocates obtained 
their legal knowledge by listening to, and treasuring 
up, the advice or instruction which was given to those 
who were in consultation with their lawyers. In this 
way, we are told, Cicero attached himself to Scsevola, 
the greatest lawyer of his day, and as he tells us, never 
quitted his side until he acquired a sufficient amount 
of legal instruction. The word sufficient, can hardly 
imply much, for even with the talents of Cicero, the 
means, or opportunity of acquirement, must have been 



252 THE FORUM. 

too limited to have been attended with any great scien- 
tific advantage. It must have been rather a system 
of cramming for the immediate occasion. 

It was upon oratory or advocacy, that their chief 
efforts, and labors, and hopes were bestowed. This 
was the grand desideratum. The famous orators of 
the time were selected by the youthful aspirants for 
their models, and having respectively selected their 
favorites, they assiduously attended his speeches, in 
order that they might become familiar with the proper 
style of forensic oratory. 

Admission to the forum was, with the Romans, a 
most important epoch of life. The student then as- 
sumed the toga virilis, was brought forward by some 
dignified and influential citizen, and formally introduced 
as a practitioner of law. From this period he might 
at once undertake the management of causes. 

In regard to chamber counsel, or juris consults, there 
was no law against taking fees — this applied only to 
advocates. The lawyer composed speeches, but did not 
deliver them for litigant parties ; and although inferior 
in influence to the advocates, derived large profits from 
their employment ; and as there were but few adepts 
among them, valued themselves highly upon their ac- 
quirements. Durmg the Republic, however, no body of 
men exercised such control over the destinies of Rome 
— ^not even the military — as her orators. Nor is it to 
be understood that their efforts were attended only 



ENGLISH AND AMERICAN PRACTICE. 253 

by fame — they also accumulated large fortunes, high 
political posts, and unrivalled power. It is true, they 
were prohibited by law, as has been said, from exact- 
ing fees for their advice or services ; but even this re- 
dounded to their advantage, not only on the score of 
profit or favor, but even in a pecuniary point of view — 
it elevated the profession without impairing its means 
of support. Cicero is said to have received gifts and 
bequests exceeding one hundred and fifty thousand 
pounds sterling from his profession, besides deriving 
from it offices and dignities, that were beyond all esti- 
mation. Hortensius accumulated great wealth; and 
although he was not to be ranked with Cicero as an 
orator, as an advocate, simply, he had no superiors. 

Now let us, condensing our views, look at the subject 
with regard to the countries to which we have hereto- 
fore referred. In Athens, where oratory first prevailed, 
there were no lawyers. In Home, the lawyers were 
not orators or advocates, but corresponded to mere 
chamber counsel ; and the orators were not lawyers, 
but depended upon the juris consults for a meagre 
supply of legal lore. In England, the profession is 
divided into attorneys, special pleaders, barristers, and 
sergeants. The two former classes supplying the briefs 
and pleading, and the latter two discharging the duties 
of advocates before the court. In the United States, aU 
these different departments of legal and forensic duties 
are combined and discharged by the members of the 



254 THE FORUM. 

bar. No counsel would be employed with us in a suit, 
or his advice sought for, unless upon the presumption 
that he would be able, if necessary, to vindicate that 
advice before the court. And no attorney, strictly so 
called, would be essential to the trial of any action, or 
its preparation. If, from the importance, and difficul- 
ties, and labors of a case, more than one counsel should 
be requu'ed, all these duties are discharged by the coun- 
sel, or by their students under their direction. They are 
in no wise dependent for their employment, or the dis- 
charge of their functions, upon any other class of the 
profession. There is no division of labor — no attor- 
neys to give caste or influence to the advocates — no 
briefs with fees indorsed — no consultations, except di- 
rectly with themselves. They not only argue their 
cases, but they perform the duties as a matter of popu- 
larity or political ambition, as did the Roman orators. 
In all affairs of deep public interest — all national festi- 
vals, or anniversaries — all philanthropic and benevolent, 
or patriotic occasions — ^in State or Federal councils — 
wherever thek talents are required, they are freely 
and promptly rendered ; and although those services 
are gratuitous, they indirectly contribute largely to the 
enjoyment of public favor, and the promotion of pro- 
fessional eminence — and fortune. 

The difference between the lawyers and orators of 
Rome and the attorneys and counsel of England, is this : 
That in Rome, the orators were supplied with the law 



ENGLISH AND AMERICAN PRACTICE. 255 

bearing upon their case, by the juris consults, and with 
few exceptions, (as in the case of Crassus, Cicero, 
Gracchus, and others, who had devoted their attention 
expressly to eloquence, and some of whom studied in 
the Greek schools,) depended almost entirely upon the 
occasional supplies which they from time to time de- 
rived from the legal labors and resources of others. It 
is not so and never has been in England. There, it is 
true, the professions are different, though connected. 
The attorneys are the persons originally consulted, 
and who attend to all preliminary details — the evi- 
dence — the pleadings — the briefs — the fees — and gene- 
rally even select the counsel. So that an attorney of 
great celebrity, and of course, coextensive practice, has 
great control over the success and fortunes of those to 
whom he allies himself in professional relations. In 
Rome, the orators contributed largely to the eminence 
of the lawyers. In England, the attorneys exercised 
great power over the counsel. Both of these systems 
were undoubtedly less onerous, and more agreeable 
than ours, but neither of them was as beneficial or so 
economical as that which is almost invariably adopted 
in the American courts, and especially in Pennsylva- 
nia. Here the attorney is the counsel, and the coun- 
sel the attorney 5 he manages and controls the entire 
progress of the suit — his intercourse with his client is 
not intermediate, but direct — he conducts all the plead- 
ings—prepares his own brief — examines the witnesses 



256 THE FORUM. 

in Ms office or in court — digests and arranges his own 
authorities, and finally argues the cause. The labor 
incident to these duties is very great, but its advan- 
tages are commensurate. A man can never perform 
any work so satisfactorily as when he is acting upon 
his own knowledge ; nor can any facts procured by an 
attorney be as satisfactory to counsel, as those which 
he himself might obtain by personal examination. 
Every man has his own views in regard to the points 
of a case, and the nature of the evidence required to 
elicit them, and he can, therefore, best " minister to 
himself." This course secures counsel against confu- 
sion and surprise ; it furnishes him with a knowledge 
of the weakness, as well as the strength of his case, 
and that of his adversary; it brings him into timely con- 
tact with his witnesses ; he becomes acquainted with 
their manner, their temper, their bias; all of which 
enter largely into the estimate of their testimony. It 
has been suggested, that this would be impracticable 
in England. It might be inexpedient to make any 
radical change in their deeply-rooted system, but it 
certainly would not be impracticable, nor, perhaps, in- 
judicious. It is true, we cannot argue against a system, 
merely because it is subject, in some respects, to casu- 
alties or exception; but those who have attended legal 
proceedings at Westminster Hall or Lincoln's-Inn, could 
not fail to have perceived — and not unfrequently — 
great embarrassment of the counsel, from a want of 



ENGLISH AND AMERICAN PRACTICE. 257 

that familiarity with facts, and their application to the 
legal points of a case, which would have been avoided, 
or lessened, by pursuing the system adopted in this 
country. No lawyer can examine a witness satisfac- 
torily, from the notes or brief prepared by any other 
hand than his own — he is often rather benighted than 
enlightened. And of all briefs, the brief of an attor- 
ney would be the most objectionable, or least available. 
They save time to counsel, but they place him in a 
state of dependence, from which, it in some cases hap- 
pens, no genius or talent can relieve him. A man who 
always depends upon another, naturally and necessa- 
rily impairs his own powers. 

We remember a rather amusing instance of this, in 
the argument of an injunction in the case of The 
Queen v. Strange, before Sir Knight Bruce, in 1848. 
The attorney, or solicitor, having, of course, prepared 
the pleadings, which were voluminous — bill, answer, 
etc. — the learned judge, during the argument, inquired 
of Mr. Talfourd as to the averment of a certain fact, 
which was deemed vital to the proceeding. The learned 
Sergeant (who had probably never read any thing more 
than an abstract of the bill,) could not find it — none of 
the attorneys could find it. The crown affirmed its 
existence, the defendant denied it; and after an hour's 
confusion, it turned out, that although contained in. the 
original bill, it had been omitted from the transcript. 

Before admission, the young counsel is condemned. 



258 THE FORUM. 

to the drudgery of the office of special pleaders — ^men 
who practise under the bar. They thereby obscure their 
genius — obliterate their learning — and of course be- 
come as flat, and as dry, and as verbose, and as incom- 
prehensible as the vocation in which they have been 
employed. It is much to be doubted, whether a tho- 
rough-paced special pleader can ever become an elo- 
quent advocate. His life is a life of constant and almost 
.unmeaning forms ; he becomes as dry and as stiff as the 
parchment with which he is familiar. There is a time 
of life that exercises a most powerful influence upon 
past accompHshments and future hopes. It is that 
period between the completion of our collegiate and 
professional course and entering upon the practice of 
the bar. The interval, therefore, that is bestowed 
upon special pleading, is not only thrown away, but 
worse than thrown away, inasmuch as it retards future 
advancement and buries past acquirement. The study 
of special pleading is not condemned, but adequate 
knowledge of it can be obtained from the valuable 
books pemied by such men as Chitty and Stephens, 
without wasting time upon its practical details, sham 
pleas, subtle pleas, and other absurd technicaHties. 

It must be a matter of rejoicing among the Enghsh 
bar, that recently (these forms having accumulated to 
such an extent as to embarrass, and almost to defeat 
justice,) the courts have somewhat set their faces 
against aU dilatory pleas, and by breaking through 



ENGLISH AND AMERICAN PRACTICE. 259 

the meshes of over-refined niceties in pleading, have 
turned their attention to the substantial merits of the 
issues which are submitted to their decision. 

The two legal departments of counsel and attorney 
relieve each other, it is true, but our own practice has 
shown that they are not necessary; and it is far from 
being certain, that the relief of the profession does not 
contribute to the injury and incumbrance of the public. 

There is an admirable Essay upon the Bar of Eng- 
land, published in Blackwood's Magazine, for the month 
of June, 1856, page 61. We must content ourselves 
by quoting from it, a passage in relation to legal stu- 
dies and admission in this country, which, although 
it is said to have been derived from a member of the 
Pennsylvania Bar, is, we think, in some respects inac- 
curate. Still the article contains valuable instruction : — 

" In the United States of America, tlie facility of admission into 
the legal profession is great, and those distinctions which are in 
this country observed, are disregarded. The same person practises 
as attorney and counsellor, (the word '■ barrister' seems not used in 
America,) either alone, or in partnership; and takes pupils — 
sometimes a considerable number — who pay about twenty pounds 
a-year. These he is expected to teach their profession, making 
use of their services the while, as attorneys in England those of 
their clerks. After having spent in the ofl&ce a period of from two 
to three years, dependent on being twenty-one years of age, or 
under, the youth gives public notice of his intention to apply for 
liberty to practise. After having passed a private, desultory, brief, 
and exclusively professional viva voce examination of half an hour, 



2gQ THE FORUM. 

or an hour, which may be extended, if it appear necessary, to 
several hours — but generally speaking ^pretty well testing the 
student's knowledge,' and having brought a certificate of moral 
character from his master, — a motion is made in court by the latter, 
or any other member of the bar, for the admission of the candidate. 
He is then formally permitted to practise, the only fee payable 
being one dollar to the crier. When asked whether there was any 
appeal from a rejection by the board of examiners, the witness 
answered — '■ I am not aware of any appeal having ever been made. 
I think that, in general, a rejection is softened with the advice to 
withdraw the application, and to study longer. The examination 
not being very strict, I think it would be a hopeless thing to appeal, 
ibr I do not think that any student was ever rejected, who could, 
with any propriety, have been admitted.' All legal duties are 
discharged by the Attorney-Counsellor of the United States. ' We 
feel no hesitation' said a witness, a member of the American bar, 
' at all, in going through the routine of serving processes ourselves. 
Even distinguished members of the har, in fidl practice, would 
serve a rule to plead, or serve a subpoena on a witness, and make 
an affidavit of having done so .''* They also see and examine the 
witnesses privately before going into court, the very notion of which 
is repulsive to the English bar. ' In the United States,' says this 
gentleman, ' the turn of things is rather to enable everybody to do 
everything. This results from the character and habit of our 
people. That division of labor which is characteristic of England, 
is not so of us. Here, you obtain a great precision in everything 
by the division of labor. In our country, we do not to the rame 

* Even this — though its truth is not admitted — is better than the prac- 
tice of the English attorneys' clerks, one of ■whom in an answer to a 
question said, " I have been a month in the office. I now only swear to 
service, but in a short time I shall be competent to swear to merits^ 



ENGLISH AND AMERICAN PRACTICE. 261 

extent. In other departments, sucli as that of manufactures, the 
principle of the division of labor prevails, but such is not generally 
the case with respect to the labor of the bar.' There were only 
two American witnesses examined by the commissioners, one of 
them styled ' General,' and who stated that he had been only eight 
years in the legal profession, having been up to middle age in the 
army. The former, when asked ' the general course of proceeding 
for admission to the bar in America,' commenced by saying, * I 
can only speak as a Pennsylvania lawyer. I am inclined to think 
that our condition, as a federation of independent States, is scarcely 
sufficiently appreciated out of the United States. Everywhere 
abroad, inquiries are made of me, constantly, with regard to the 
condition of things in remote States, of which I am nearly as igno- 
rant as a stranger to America can be, owing to the vast extent of 
the United States. The system of proceedings for admission to 
the bar differs considerably in different States. As to Philadelphia 
I can speak, and partially as to New York, and also as to the 
practice in the courts of the United States, properly so termed.' 
Notwithstanding, however, this facility of access to the American 
bar, and the blending, by the advocate, of functions deemed here 
so incompatible, derogatory, and inconsistent with the interests of 
the public, no one who' reads the law reports of the United States, 
and the text-books of its Kents and Storys, will fail to think of the 
transatlantic bench and bar with the utmost respect. It may be 
added, that four-fifths of the lawyers in America were educated in 
their universities. 

" Onerous, diversified, and honorable as are the duties devolving 
on the English bar, heavily taxing alike their integrity, talent, and 
learning — what will the non-professional reader suppose to be 
required in order to be admitted into its ranks, — to become a com- 
petitor for its prizes and honors, from the Great Seal downwards ? 
If, by means of a legacy or otherwise, a waiter at a tavern, an 
errand boy in an attorney's office, a ticket porter, a sweep, or, as 



2g2 THE FORUM. 

was very recently the case, a policeman !* found himself in possession 
of three or four hundred pounds, and had a fancy to become a 
barrister, — if he could get a couple of barristers or a bencher to 
say simply that he was a respectable person, and proper to be 
admitted a member of an Inn of Court, in order to be called to the 
bar, (and Grod forbid that such a certificate should be withheld 
from the humblest member of society, if nothing were known really 
discreditable to him in respect to character and conduct,) he would, 
on paying about forty pounds, be enrolled a member of any of the 
Four Inns ; and if he only partook twelve times a year of a very 
comfortable and inexpensive dinner provided by the Inn, in its 
hall, at the end of three years he would be entitled to be called to 
the bar, and figure thenceforth as '■ A. B., Esq., barrister-at-law.' 
A chance and curious inquiry might perhaps elicit the fact that, 
in our fledgling friend's opinion. Corpus Juris was the name of a 
place that he had somewhere heard of — ^but never mind, he was a 
counsel, learned in the law, and might hold up his head with the best 
of those so mysteriously denominated ; and one or two hard hits at 
starting, might, if he had sense and spirit, send him, on the sly, to 
the Sunday school which he had so shamefully neglected in his youth. 
Not many years ago, one of these bold aspirants to fame and fortune, 
having to address a judge on the last day of term, and being forced 

* Report, p. 137. The following extract is so remarkable that we give 
it in extenso, in the words of the witness, a member of the Oxford Circuit : 
"T know a case where a man is positively an inspector of police, and is a 
ban-ister ! He was in the police force when called, and is so still ! The 
Sessions mess of the county in which he was stationed, sent up a requisi- 
tion to the benchers of Gray's Inn, begging them not to call him, and 
stating as a reason that they did not believe he was going to practise as 
a barrister, and they thought it was a degradation to them, for a man to 
be able to call them his learned friends, who was absolutely in a blue 
coat and bright buttons. The benchers never sent any answer to the 
requisition, but they called him to the bar notwithstanding !" 



ENGLISH AND AMERICAN PRACTICE. 263 

to use the words ^ nolle prosequi,' pronounced tlie latter word 
'prosequi :' on wMch. lie was considerately reminded, though with- 
out seeing what was meant by the sarcastic judge, that on the last 
day of term, (when there was usually a press of business), it was 
not right ' unnecessarily to lengthen proceedings.' " 



nmmn *'' '* 



C^aHUliaUd, 



GERMS AID GEMS OF GEIIUS. 



OENAMENTA EATIONALIA, 



GERMS AND GEMS OF GENIUS. 



CHAPTEE XIY. 

Diana's lip 
Is not more smooth and rubious. — Tioelftli Night. 

NATIVE CHARMS. 

'Tis beauty truly blent, whose red and white, 

Nature's own sweet and cunning hand laid on. — Dr. Donne. 

TRANSIENT BEAUTY. 

For women are as roses, whose fair flower, 

Being once displayed, doth fall that very hour. — Shakspeare. 

GRIEF. 

A cypress, not a bosom, 
Hides my poor heart. 

If one should be a prey, how much the better 

To fall before the lion than the wolf? — Shakspeare. 



268 THE FORUM. 

Westward the star of Empire leads tlie way. — Berhley. 

There lies your way due West — 
Then westward, ho ! — Shakspeare. 

what a deal of scorn looks beautiful 

In the contempt and anger of his lip. — Ih. 

A murderous guilt shews "not itself more soon, 
Than love, that would seem hid. — Ih. 

A poor heart-broken thing — 

A mother — yet no wife. — 3Iotlierwell. 

THE GRAVE. 

And 0, think on the cold, cold mools 

That fill my yellow hair. 
That kiss the cheek, and kiss the chin, 

Ye never shall kiss mair. — Ih. 

Familiar matter of to-day. 

Which has been, and will be again. — Ih. 

CAPRICE. 

The smile of a maiden's eye, 

Soon may depart. 
And light is the faith of 

Fair woman's heart; 
Changeful as light clouds. 

And wayward as wind, 
Are the passions that govern 

Weak woman's mind. — Ih. 



ORNAMENTA RATIONALIA. 269 

Dull builders of houses, 

Base tillers of earth, 
G-aping, ask me, what lordships 

I own'd at my birth. 
But the pale fools wax mute, 

When I point with my sword — 
East, west, north, and south — 

Shouting, there am I lord ! — Motherwell 

When the arm wields Death's sickle. 
And garners the grave. — lb. 

Not swifter from the well bent bow, 

Can feathered shaft be sped. 
Than o'er the ocean's flood of snow, 

Their snorting gallies tread. — lb. 

His fearless soul was churning up, 
The death-rune of the brave. — lb. 

IDLENESS, 

The Sloth perishes on the tree he climbs, after having eaten all 
its leaves. 

The Bishop of Durham, Chancellor and High Treasurer of Eno-. 
land, in 1341, purchased thirty volumes of the Abbot of St. 
Albans for fifty pounds weight of silver. 

In 1364, the Koyal Library of France did not exceed twenty 
volumes. 

Fleta, (a law book,) derives^its name from having been written 
in Fleet (prison). 



270 THE FORUM. 

The bloom of young desire — the purple light of love. — Gray. 

ELOQUENCE. 

With winning words to conquer willing hearts. — Milton. 

AGE. 

His head — where every silver hair complained of time. — Hayne. 
A wilderness of sweets. — Milton. 
Patient as midnight sleep. — ShaJcspeare. 
Upon his eyelids did conjecture hang. — lb. 
Pale " as the lids of Cytherea's eyes." — lb. 

INNOCENCE. 

The harvest of a quiet eye, 

That broods and sleeps on its own heart. 

SEA LIFE. 

The shouting and the jolly cheers. 

The bustle of the mariners 

In stillness and in storm, — Motherwell. 

The ancient spirit is not dead, 

Old times, we say, are breathing there. — Ih. 

Beautiful, uncertain weather. 

When storm and sunshine meet tos;ether. — lb. 



ORNAMENTA RATIONALIA. 271 

JEALOUSY, 

Oil, it comes o'er tlie memory 

As does the raven o'er the infected house ; 

Boding to all. — Othello. 

Woo'd, won, and wed, and murdered by the Moor. — Ih. 

Simplest strains do soonest sound 

The deep founts of the heart. — MotJierwell. 

MAN. 

A holy mystery, 
A part of earth — a part of heaven — 
A part, great God, of thee. 

LOVE. 

All thoughts — all passions — all delights — 

Whatever stirs this mortal frame ; 
All are but ministers of love, 

And feed his sacred flame. — Coleridge. 

CHEERFULNESS. 

With earth it seems brave holiday — 

In heaven it looks high jubilee. — Motlierwell. 

They lack all heart, who cannot feel 

The voice of Heaven within them thrill. — Ih. 

SEVERED AFFECTIONS. 

Heart bankrupts both are made. — Ih. 



272 THE FORUM. 

From pride we botli may borrow, 

To part, we botli may dare ; 
But the heart-break of to-morrow, 

Nor you, nor I can bear. — Mothencell. 

Such eyes as may have looked from heaven, 
But ne'er were raised to it before. — Moore. 

Have I lived to stand the taunt of one that makes fritters of 
English. — Shakspeare. 

Here will be an odd abusing of Grod's patience, and the King's 
English. — lb. 

ABUSE. 

The bitter clamor of too eager tongues. — lb. 

LIAR, HIS OWN DUPE. 

Like one 
Who having, unto truth, by telling it — 
Made such a sinner of his memory, 
To credit his own lie. — lb. 



GRANDILOQUENCE. 
He speaks holiday. — Shakspeare. 

Cambyses' vein. — lb. 

These new tuners of accents. — lb. 

Phoebus, what a name ! — Byron. 



\ 



ORNAMENTA RATIONALIA. 273 

HUMILITY. 
Often to our comfort shall we find 
Tlie sharded beetle in a safer hold 
Than is the full-winged eagle." — ShaJcspeare. 

To progress. — Richard III., and King John. 

WOLSET. 

The Devil speed him ! No man's pie is freed 
From his ambitious finger. — Henry VIII. 

SILENT PIETY. 

Felt, but voiceless prayer. — Ilotherwell. 

I bend me towards the tiny flower, 
That underneath this tree, 
Opens its little breast of sweets, 
In meekest modesty; 
And breathes the eloquence of love, 
In muteness. Lord, to thee. — Ih. 

Grlittering in meridial beams. — Ih. 

Dear Lord ! thy shadow is forth spread 

On all mine eye can see ; 

And filled at the pure fountain head 

Of deepest piety. 

My heart loves all created things. 

And travels home to thee. — Ih. 

EVENING. 

Parting day 
Dies like a dolphin, whom each pang imbues 
With a new color, as it gasps away ; 
The last still loveliest, till 'tis gone, — and all is gray. — Byron. 



274 THE FORUM. 

The golden day 
Grilds yon sky-helmed mount witli purple hues, 
Like fabled dolphins, varying as it dies. — B. 

Paint, till a horse may mire upon your face. — 

Timon of Athens. 

Be as a planetary plague, when Jove 

Will o'er some high-viced city hang his poison 

In the sick air. — Ih. 

Put armor on thine ears, and on thine eyes. — Ih. 

AVARICE. 

0, cursed lust of gold ! when for thy sake 

The fool throws up his interest in both worlds, — 

First starved in this, then damned in that to come. — Blair 

There's more gold ! 
Do you damn others, and let this damn you ; 
And ditches grave you all. — Shakspeare. 

The learned pate 

Ducks to the golden fool. — Tb. 

POPULAR FAVOR. 

Where are the people — the Sertorian band 
Who cling around him with unwavering love, 
Like the fond ivy twining round the oak. 
Or life's warm eddies circling through the heart — 
In conquest and defeat I — B. 



ORNAMENTA RATIONALIA. 275 



AUTHORITY. 

That wticli lie decides, fate's awful fiat 
Stamps as irrevocable — It is done. — B. 



Let ambition, 
Pointing the way to fortune and renown, 
Allure tbee to those proud, supernal heights, 
Which only Grods, and men like Gods attain. — Ih. 

What, shall the pillars, 
Howe'er magnificent and richly wrought. 
Degrade the temple that their strength sustains ? 
Or shall they, as in sacred G-recian domes. 
Unite in mutual grandeur, — and when time. 
With his unsparing, fell, and ravening maw. 
Disrobes them of the ornament of youth. 
Dissolving and prostrating all their glory. 
Sink in one common ruin, and become 
More fam'd and cherish'd than in pristine pride ?—Ib. 



TRAITOR. 

The felon, that purloins his country's glory, 
To prostitute it to his country's shame ! — lb. 

PATRIOTISM. 

The brave man never should outlive his country : 
As clings the infant to its mother's arms. 
Blessing and blest — so cleaves the patriot's heart 
To the embraces of his native soil. 
At once deriving, and imparting life. — Ih. 



276 THE FORUM. 

FEAR OF WRONG. 

But when you ask, that to destroy that country 
I should shake hands with her inveterate foe, 
And sell myself to shame — immortal shame, 
I tremble, and profess myself a coward : 
I cannot do it — shuddering nature dare not ! — B. 

TRUE COURAGE. 

Talk not of hazard ! I dare hazard all 
But that, without which all is penury ; 
The cherish' d, priceless, peerless jewel — Honor. — Ih. 

CONTEMPT. 

— What ! are ye a hireling tribe. 

To be bought out by him that bids the highest ? 

If the design be noble, grasp it nobly; 

And do not, like a band of sordid slaves. 

Embrace your bondage, for the golden fetters. — Ih. 

Patience, ye Gods ! — and thou, great ^olus. 
That with thy sovereign wand, curb'st and direct'st 
The ever changing and rebellious winds, 
And gather'st them within thy stormy bosom, — 
Teach man fidelity ! — Ih. 

AMBITION. 

His eagle-wing' d ambition soars so high. 

That we are only left to gaze and wonder 

At the proud pinnacle on which he revels, 

While grovelling in our lowly sphere beneath him. — Ih. 



Thus rendering opposition to his will 
Like vain resistance of the cataract. 
Making it rage the more. — Ih. 



ORNAMEXTA RATIONALIA. 277 

GENEROUS RIVALRY. 

Despite of all the rooted liate I bear him, 
I almost grow enamored of his virtues, 
When I behold him, like the baited lion, 
With all his hopes reposing on himself. 
Surrounded by his hunters and their toils. 
Still firm and_fearless, ever-facing dangers. — B. 

Keserve thy praises for his monument — 
They will improve in marble, and endure ; 
While he yet lives, they're fulsome flattery : 
To give them currency, and weight, and value, 
They need the stamp of death. — Ih. 

When to immortal Jove we sacrifice, 

Who mingles poison with his pure oblations. 

We kill, but curse not — nay, the song of joy, 

Chaplets of flowers, and temples fill'd with incense, 

Surround and soothe the bleeding victim's anguish. 

A patriot is the sacrifice you off"er — 

Shall we do less for him !— /J. 

Mine is the hand should strike the deadly blow, 
And mine the eye should look unwavering on. — Ih. 

Hopes destroy'd, endear those which remain. — Ih. 

What more precious 
Than deeds heroic from the lips we love ! — Ih. 

The citadel, that yielded to a smile, 

And pour'd its treasures at the conqueror's feet. — Ih. 



278 THE FORUM. 

Nay, nay ! thou art a traitor — comej confess ; 

And still so guileless, artless, and so fair, 

We almost love the treason — for the traitor. — B. 



r 



GLORY. 

How evanescent and how vain is gloiy ; 
A sparkling bubble on life's stormy ocean ; 
A meteor, that delights — deludes — destroys ; 
A lamp sepulchral in a charnel house. 
Gilding, with flickering ray, the shades of death. J 
— This idol, who engross' d the hearts of all. 
Who reigns in thine with sway so absolute, 
And almost shares devotion with the Gods — 
Has done a deed to-day, should shake his fame, 
Though rooted in earth's centre ! — Ih. 

The spring of peace 
Shall pluck the lily from that faded brow. 
And plant its roses there. — Ih. 

Unlike the miser's wealth, this little jewel 
Improves in lustre each succeeding hour, 
And lights you on to joy. — Ih. 

Happy pair ! 
Crown them with joys perennial, ye blest powers. 
And guard their hearts 'gainst agonies like mine. 
Too grave to bear, too poignant to conceal. — Ih. 

Think' st thou I would transplant that fragile flower 
From the gay parterre which it now adorns, 
Exhaling odors on the vernal gale. 
To pine and perish on this wintry bed ? — Ih. 



ORNAMENTA RATIONALIA. 279 

But yesterday slie was the world to me : 
For yesterday — Ambition's mountain wave, 
The wildest, proudest, loftiest of the main. 
Rich, radiant, sparkling, foaming with delight, 
And redolent with hope, its suppliant bosom 
Bow'd at my feet, and woo'd me on to glory. 
To-day — I am degraded by the state. 
Despoil' d of outward honor, and despis'd. 
Torn from repose, condemn' d in shame to roam 
Through foreign climes, to seek myself a grave ! — 
Childless, and parentless, and friendless too. — B. 

Ye would be leaders — shame upon ye ! 

Leaders, who yet have never learn' d to follow 

Where glory mark'd the way ! Hence to your homes ! 

Is this a fit occasion, when Spain's fortunes 

Stand nicely equipois'd in Fate's dread balance. 

And heaven and earth pause on her destiny, 

Thus, by inglorious faction, to provoke 

The special vengeance of superior powers ? 

— But what care you for life's vicissitudes ? 

The mighty storm drives harmless o'er your heads— 

None but the great, the good, the godlike, feel it, 

You are below its fury. — Ih. 

Ye Grods ! how abject is the tyranny of slaves. 
Who forge a sceptre from their servile chains. 
And lord it o'er the aristocracy 
Which nature form'd — inverting her great laws, 
That power should govern, and the weak obey. — lb. 

Disperse, ye knaves — ^hence to your several homes. 
And vent your spleen on those who court your favor ! 
I do despise the one, abhor the other. — Ih. 



280 THE FORIJM. 

I found you slaves, in bodies as in mind ; 

I burst the chains of both and set you free, 

And this is my requital : you would fain return 

To your old bondage; freedom has grown irksome. 

Or would you, disobedient as you are. 

Presume to rule the state ? First learn to serve ; 

So shall ye best acquire the power to govern : 

First overcome yourselves, before ye seek 

To supervise and sway your fellow men. 

Think not that honors dignify the wearer ; 

They have no several value — ^but reflect 

Lustre reciprocal, or combine disgrace. 

Say I throw down these trappings of my office ; 

These envied symbols of authority, 

Which, while th'y allure with splendor, crush with weight; 

On whom will you confer them, mighty Sirs ? — B. 

Traitors are often made 
As felons are, by the foul accusation. 
The pride of virtue, being virtue's shield. 
By Hercules ! 'twere worth a little treason 
To purge the country of this rank disease ; 
It grows plethoric, and its bursting veins 
Eequire the lancet. — lb. 

SYMPATHY LIGHTENS GRIEF. 

The weight that all men share, from sympathy 

Is lighten' d; but the thunderbolt, that falls 

On one poor heart, scathes, scatters, and destroys it. — Tb. 

Despair should win, then, what vain hope has lost ! — Ih. 



ORNAMENTA RATIONALIA. 2§1 

IKONY. 
The love I bear the State, tlie blood Fve shed, 
The days of labor and the nights of pain 
I've borne for you; I pray forgive them all; 
I do deplore them deeply, and repent 
All such transgressions, and will sin no more. — B. 

Disaster and defeat ! and all the evils 

That throng the train of unsuccessful war. — lb. 

Kedeem the time ! 
Reflection cannot shun the shaft of fate, 
Endure it as she may. Thought is too slow, 
Resting on past, to meet approaching woe. — lb. 

my mother ! — in that sacred name 
How many hours of guileless happiness, 
Of sportive and unchequer'd innocence, 
Roll back upon the ocean of past years. 
And burst upon the view ! — lb. 

DEATH AND VIRTUE. 

Death — the destroyer, from thy potenrspell, 
Nor sex, nor age, nor strength, nor weakness 'scapes. 
Time's hoary locks — the ringlets of gay youth — 
The hero's laurel, and the poet's wreath — 
Love, honor, health, and beauty, are thy spoil : — 
The mitred, and the sceptred yield to thee, — 
In deferential horror, all — all submit, 
Save virtue, who in radiant smiles beholds 
Thy dread approach, and, arm'd in Heaven's proof, 
VOL. II. — 19 



282 THE FORUM. 

Contemns thee and ihj retinue of ills, 
Alike triumpliant o'er the tomb and thee. 
Thou canst not rob thy victim — thou mayst slay him, 
Tear him from those dear arms that cling around him, 
And teach survivors to deplore thy power : — 
But, for this temp'ral life — this life of sorrow — 
This life of death — thou giv'st him life eternal, 
Unfading joy, and everlasting love ! — B. 

That thus the crimson tide of bold invasion 

Pollutes the very sacristy of Spain, 

And bears her household Grods from their own altars. — lb. 

Hear this, ye G-ods ! Where sleep your thunderbolts, 
That thus the guilty triumph in their guilt. 
And bold impiety outfaces Heaven ! — lb. 

In the decrees of fate, if there remain 
Though but one blessing for the wretched Quintus, 
Bestow it now, ye Gods ! when most I need it. 
And ever after pour your quiver on me ! — lb. 

COURAGE OF INNOCENCE. 

*Why should the innocent 
Tremble and quake with fear ? — the guilty fear. 
For cowardice, and guilt, appal each other ; 
But virtue ever wears a lion's heart. 
Beneath the downy plumage of the dove. — lb. 

The husband's, brothel's, son's, and father's arm 
Shall guard the wife, the sister, parent, child — 
Their onli/ guard — who would depute another ? — lb. 



ORNAMENTA RATIONALIA. 283 

What more noble, 
QThan to redeem the fortunes of a State, 
And, seizing fearlessly the wayward helm, 
While the whole crew stand trembling and appalFd, 
With blanchless cheek, and an undaunted eye. 
And the nerv'd arm, fram'd as to rule the trident, 
To steer the shatter'd vessel into port. 
And, like a rock amid the troubled ocean. 
Laugh at the billows, and defy the storm. — B. 

FATE. 

No more, I pray thee : What the Grods ordain. 

Is circumvolv'd in rayless mystery. 

Dark and inscrutable to human eye. 

Still ever just — why should the just despair ? — Ih. 

RESOLUTION. 

Courage, my friends — remember that this hour 

Shall make your fame eternal as the Stars, 

Should fortune smile upon ye : should she frown. 

Why let her frown — at worst, we can but die. 

And dying in defence of virtuous freedom. 

Is to subdue the unpropitious Grods, 

And win those honors, which stern fate denies. — Ih. 

In every blow, let thoughts like these inspire you. 
And Lusitania's free. — Ih. 

Lo ! where, upon the shoulders of one man, 

A nation rests, and scorns the rage of war ! — Ih. 

The gates of Janus open but in war. — Ih. 



231 THE FORUM. 

Said I not so ? See how tMs Proteus changes — 
Threatening — inviting — fawning to betray ! — B. 

When traitors shall grow weary of their lives, 
Fate has supplied them other means of death, 
Than staining with their blood an honest sword. — Ih. 

IRRATIONAL FEARS. 

Our doubts are traitors 
To heaven and us, and antedate our doom. 
The craven heart, that shuns impending peril, 
Expires on its own spear, while dauntless courage 
Grapples with death, and rends his terrors from him. 
Had I a thousand lives, and each immortal, 
I'd jeopard all for the last hour of honor. — Ih. 

MODERATION IN SUCCESS. 

Be wary of success, and bear it wisely, 

As best becomes the changing tides of life : 

Let not the syren and seductive wiles 

Of proud prosperity ensnare your hearts — 

Self-conquest is the best and proudest triumph. 

And victory, without it, is defeat. — Ih. 

LOVE. 

In crowns, or chains, I still divide with thee : 
— No, not divide, but rather still unite. 
Remaining ever, one — ^inseparable. — II. 

Expel the Pythian priestess from' her tripod, 
Or in prophetic travail strangle her. 
And shun the lightnings of the Delphic god — 
Then hope to 'scape the vengeful populace. — Ih. 



ORNAMENTA RATIONALIA. 285 



HAPPINESS. 

Blest recompense of toils and dangers past ! 

Come to this heart, and there forever reio-n : 

Thou art the victor, Marcia — ^let me crown thee 

With thy own works— chains best become the captive.—^. 

Fair artlessness ! how worthless is the pomp 

Of the world's flattery, when compared with thee, 

All chaste and tintless, as the virgin snow. 

Come, take me with thee, wheresoe'er thou wilt : 

Like the bright cynosure, by thee I steer. 

And shun the rocks and shoals of treacheiy. — Ih. 

Now hanging round his neck in sportive smiles. 

And now reclining on his rugged bosom — 

Spring's not more lovely, when with gentle hand, 

And golden tresses deck'd with diamond dew. 

And diadem of new-blown violets, 

She throws aside the hoary locks of winter. 

And melts him, in her glance, to life and love ! — Ih. 

This boding bosom throbs with anxious fear — 
Fear undefin'd — but not less terrible : 
There is a weight that loads my anxious thoughts, 
Which, causeless in the past, precedes its cause. — II. 

He ever is assur'd, 
Whose heart is open to the eye of day — 
Who wears no lurking danger in his smiles, 
Nor dreams of tigers' hearts beneath the fleece 
Of inofi"ensive flocks. What should I fear ? 



2gg THE FORUM. 

Shall I imbitter all the joys of life, 

To shrink from death, and die in my own fears — 

While nought but poison' d bowls, and air-drawn daggers, 

And treach'rous friends — or enemies disguis'd, 

And snares, and lures, and dark conspiracies. 

Flit through the fever' d brain in endless terror — 

Beset th' affrighted soul — and prey upon it. 

Till nought remains of life, but dread of death. 

And all of death is suffer' d, but the name? — B. 

I pause no longer : flood, or ebb, in fortune. 

He rides the waves triumphant : th' ills of life, 

The tests and touchstones of external glory. 

By which alone its currency is tried, 

And sterling coin distinguish' d from the false. 

Increase his weight, and stamp new value on^him. — Ih. 

UNCERTAINTY. 

What should I dread ? I dread uncertainty, 
Through whose vast maze and labyrinths of doubt 
The anxious soul, in never-ending grief. 
Explores its fate — and, in its devious course, 
Ofttimes creates the perils it would shun. — Ih. 

Thoxt then canst fear, without my cause of fear ! 
The harmless revels of triumphant friends, 
Thy timid fancy conjures into evil ; 
Yet when I tell thee that my o'erfraught soul 
Predicts — foresees — would shun, impending peril. 
Thou cant'st as sadly of the closing night, 
As though the sun should never rise again. 
— What is, or night, or day, to those who love, 
Without love's object ! — Ih. 



ORNAMENTA RATIONALIA. 287 

His parting words sink like a funeral knell 
Into my soul, and freeze my blood with horror. 
The fading day — the deathlike sleep of nature — 
The treach'rous calm that rests upon creation — 
And the deep torpor that invests my brain, 
Are the precursors of calamity ! — B. 

Does it befit the daughter of Marcellus, 
While her dear husband's fate is poised before her. 
To watch the wavering scales, nor rush to save him ? 
To save, or die with him ! — Tb. 

Thou, a camp-bred soldier, 
With tongue untutor'd in the Tyrian school. 
Hast thrown aside thy candor with the sword. 
And wrapp'd thy sinewy frame in silken folds, 
To play the courtier, and the flatterer. — Ih. 

Why should we talk of war, when wine inspires 
Our buoyant hearts with thrilling ecstasy ? 
Let frigid cynics scoff at Cupid's chains — 
No valued trophy that the hero wears. 
Clings half so closely to the heart, as love. — Ih. 

Peace, parasites ! 
The outraged Grods frown on your lewd desires, 
To earth disgusting — and a crime to heaven, — Ih. 

Bear up, my soul — and, worthy of thyself. 
Endure approaching peril, as the past — 
Dying as all should die, who hope to live 
In the proud pages of futurity. — Ih. 



2gQ THE FORUM. 

Quote not the vices of ptilosopliy, 

To justify indulgence of yoiy own ; 

But emulate her f irtues, if you can. 

The love wliicli twines most closely round tlie heart, 

Disdains the use of words, and shuns the eye 

Like truth, despising outward ornament. 

In native worth : the Grod you worship, bends 

A feeble bow, and dips his shaft in wine — 

The wound soon heals. — B. 

'Twere easier to unite thy downward soul, 
With elevated and aspiring thoughts ! — Ih. 

I know ye all, and I despise ye all, 

And the black purpose of your ribald crew. — Ih. 

Ha ! valiant traitors ! how your weapons blush. 
While wielded thus 'gainst a defenceless man, 
But dauntless as defenceless ! Death to me — 
To me, alone, is but repose from toil, 
'Tis only for the living that I fear. — Ih. 

Come — let me note you for posterity. 
Who is the first to strike — I stand alone ? 
He who is first, shall be the last remember* d—- 
Immortalized in shame. — Ih. 

Look here, revenge, and sate thyself with blood ! 
See where the patriot and the hero lies. 
Clasped in the fond embrace of virtuous love ! — 
If this be death, who would desire to live ? 
If what I feel be life, who fear to die ? — Ih. 



ORNAMENTA EATIONALIA. 289 

Why shouldst thou hate men ? 
They never flattered thee : What hast thoa given ? 
If thou wilt curse — thy father, that poor rag, 
Must be thy subject; who, in spite, put stuff 
To some she beggar, and compounded thee, 
Poor rogue, hereditary. — Shakspeare. 

GOLD, 

Thou bright defiler 
Of hymen's purest bed — thou valiant Mars ! 
Thou ever young, fresh-lov'd and delicate wooer. 
Whose blush doth thaw the consecrated snow, 
That lies on Dian's lap. — Ih. 

OLD MEN. 

These old fellows, have their ingratitude in them hereditary, 

Their blood is cak'd — 'tis cold — it seldom flows : 

^Tis lack of kindly warmth — they are not kind. 

And nature, as it grows again towards earth, 

Is fashion'd for the journey, dull and heavy. — Ih. 

Eaise me that beggar, and denude this lord — 
The senator shall bear contempt hereditary, 
The beggar native honor. — lb. 

The gnats that in my evening glory play. — Zee's Gloriana. 

Plots are the dark and back way to a throne, 
Miss but one step, we roll with ruin down. — Ih. 

As a May morning rising from the East, 

Or day dismounting in the golden West. — lb. 



290 THE FORUM. 

Power circling wit; and pleasure pressing pride. — Lee^s Gloriana. 

SEPARATION — ( Ship.) 

And calm and smootli it seemed to win, 
Its moonlight way before the wind, 

As if it bore all peace witbin. 

Nor left one breaking heart behind. — Moore. 

— That lingering press 
Of hands, that for the last time sever — 
Of hearts, whose pulse of happiness, 
When that hold breaks — is dead for ever. — Ih. 

Full of fresh verdure and unnumbered flowers — 
The negligence of nature. 

Shall we to roost, 
Before we rouse the night owl with a catch. — Shakspeare. 

0, they love least, that let men know they love. — Ih. 

But neither bended knees — pure hands held up — 
Sad sighs — deep groans, nor silver shedding tears, 
Could penetrate her uncompassionate sire. — Ih. 

No vice is so bad 

As virtue run mad. — B. 

He paused, indeed, in the work of destruction — but he paused 
like the Pythian Apollo, while balancing his body, fixing his eye, 
adjusting his bow, and deliberately directing the unerring shaft to 
the heart of his victim. — Ih. 



ORNAMENTA RATIONALIA. 291 

Base and unlustrous as the smoky light 
That's fed with stinking tallow. 

Honesty coupled with beauty, is to have 
Honey sauce to sugar. — Shakspeare. 

It is the bright day that brings forth 
The adder.— /6. 

Why should a man whose blood is warm within, 
Sit like his grandsire, cut in alabaster; 
Sleep when he wakes, and creep into the jaundice 
By being peevish ? — Merchant of Venice. 

They are abhorred further than seen; 

And one infects the other against the wind a mile. — 

jShakspeare. 

The card and calendar of gentry. — lb. 

Farewell to thee for ever; 

We part to meet no more. 
A word those hearts may sever, 

Which worlds cannot restore. — B. 



POPULARITY. 

This common body, 

Like a vagabond flag upon a stream, 

Groes to and back, lackeying the varying tide, 

To rotitself with motion. — Shakspeare. 

To roll with pleasure in a sensual sty. — Milton. 



292 THE FORUM. 

Orient liquor in a crystal glass. — Milton. 

I should be loatb 
To meet the rudeness and swill' d insolence 
Of such late wassailers. — Ih. 

Beauty, like the fair Hesperian tree, 

Laden with blooming gold, had need the guard 

Of dragon watch with unenchanted eye. — Ih. 

A sable cloud 
Turns forth her silver lining on the night. — lb. 

Virtue, 
Which oft is sooner found in lowly sheds, 
With smoky rafters, than in tap'stried halls 
And courts of princes. — Ih. 

And thou shalt be our star of Arcady, 
Or Tyrian cynosure. — Ih. 

The silver-shafted queen. — Ih. 

ELOQUENCE. 

Youth, beauty, pomp, what are they to a woman's heart, com- 
pared with eloquence? The magic of the tongue is the most 
dangerous of all spells. — B, 

No man was ever improved by prosperity, but thousands have 
been benefited by adversity. It is a rough but an excellent teacher, 
whose lessons are rarely forgotten. — Ih. 



ORNAMENTA RATIONALIA. 293 

BEAUTY. 
Bright eyes; lips like rubies; teetli like pearls, and a quiet 
tongue within them. — B. 

But midst his mirth, 'twas often strange 

How suddenly his cheer would change, 

His look o'ercast and lower, — 

If, in a sudden turn, he felt 

The pressure of his iron belt^ 

That hound his breast in penance pain, 

In memory of his father slain. — Scott. 

When the Product of Catalina, by Crebillon, was seized or 
attached, in 1749, a decree of the Council of Louis the Fifteenth 
issued, declaring the productions of the mind not among seizable 
effects. 

The popes prohibited the publication and use of the Bible among 
the vulgar, and forbade absolution of the sins of those who had it 
in their possession. So, also, did Henry the Eighth, except to a 
privileged order. 

Grood springs from evil — strength out of weakness. The pen 
that governs, guards, adorns, and sustains empires, was plucked 
from the wing of a goose. — B. 

"We think more of ourselves than of others ; but we think more 
for others than ourselves. — Bacon. 

Like two sweet instruments ne'er out of tune. 
That played their several parts. — Blair. 



294 THE FORUM. 

In adversity, 
The mind grows tough by buffeting the tempest ; 
But in success, dissolving, sinks to ease 
And loses all her firmness. — Rowe. 



When ranting round in pleasure's way. 

Religion may be blinded ; 
Or, if she give a random sting, 

It may be little minded : 
But, when on life we're tempest-driven, 

A conscience but a canker, 
A correspondence fixed with heav'n, 

Is sure a noble anchor. — Burns. 

Doggerel poetry and bad English are intolerable, except in epi- 
taphs, and letters from parents to children, and children to parents. 
The reason of the exception is, that in those cases affection triumphs 
over mere intellect. — Pope. 

Summer suns 
Show not more smooth, when kissed by southern winds, 
Just ready to expire. — Blair. 

Those powers that are most terrible in action, are always the 
most tranquil in repose. Look at the glassy surface of the smiling 
ocean, "when kissed by the southern breeze just ready to expire," 
and then imagine the terrors of the storm ! Look at the sleeping 
lion, and fancy, if you can, the same animal roaring, and rampant 
for his prey ! Look at Samson slumbering in the lap of Delilah, 
and who shudders for the fate of the Philistines ? The tranquillity 
is increased by the unconscious comparison, or rather contrast, be- 
tween the opposite extremes as presented by the same object. — B. 



ORNAMENTA RATIONALIA. 295 

She was — 
Words are wanting to say what ; 
TMnk what a friend should be, — 
She was that. — Patterns Field, over Schuylkill. — {Pope.) 

" The heart of a statesman/' says Bonaparte, " should be in his 
head." 

The head of an advocate should be in his heart. — B. 
Steal the livery of Heaven, to serve the Devil in, 

ECSTATIC LOVE. 

! thou day of the world, 

Chain my armed neck, leap thou, attire and all, 

Through proof of armour to my heart, and there 

Ride on the pants triumphing. — Antony and Cleopatra. 

He wielded neither the keen scimitar of Saladin, nor the pon- 
derous battle-axe of Eichard, — but the dull cleaver of a cold-blooded 
butcher. — B. 

He that is rich, or he that is poor, knows but half of his own 
nature. The experience furnished by both is the best of know- 
ledge. — lb. 

MIND, 

The mind is never impaired, except through the disordered func- 
tions of the body. If the mind could in itself be diseased, it 
could die; a supposition which would be opposed to the doctrine of 
the immortality of the soul, and is, therefore, to be utterly re- 
jected. — lb. 



f 



296 THE FORUM. 

Care still delves his deepest furrows, 
In tlie fairest, softest brow ; 

Brightest eyes are dimm'd with sorrows, 
Euby lip shall cease to glow. — B. 



SPEECH. 

Speech is the morning to the soul. 

It spreads its beauteous images abroad, 

Which else lie furl'd and clouded in the brain. 

RULING PASSION. • 

It is our hope, or our despair. It often secures success, — and in 
success enjoys the chief happiness, as, in cases of failure, it suffers 
the chief misery. 

If thou dost any beautiful thing with toil, the toil passeth away, 
but the beautiful remains. If thou dost a vile thing with plea- 
sure, the pleasure passeth, but the vileness remaineth. — llusonius, 
or Jeremy Taylor. 

It is said, that in every situation, pecuniary competency is neces- 
sary to happiness. This* is a great error. This would be to de- 
grade and destroy the lofty character of man; who, in truth, depends 
upon nothing for his happiness, but a virtuous life, and unlimited 
faith in his Creator. That a dollar more or less, should exercise 
any influence upon his position, as rightly understood, is to make 
him the meanest, instead of the noblest, of God's creatures. — B. 

I don't know how it is with others, but I am never so much 
disposed to be proud, as when my worldly hopes are humblest. — 
Ih. 



ORNAMENTA RATIONALIA. 297 

INTOLERANCE IN RELIGION. 

A war against Catholics^ would involve a war against natives — 
and not only a religious, but a social and domestic war, of neigh- 
bor against neighbor — ^brother against brother — husband against 
wife — parent against child, and child against parent. — B. 

My greatest difficulties in life have sprung from my greatest 
successes — and the greatest enjoyments of life, from what have 
been considered the greatest privations. — Fb. 

Most men would be greater in the close of life, if they were not 
so great in its beginning. — Ih. 

Test the gratitude of men, when .you can do without it — never 
rely upon it in an emergency. Friendship then, or love, is the 
only dependence. Religion is the consolation where all other re- 
sources fail — that never fails, — Ih. 

If we cannot derive support from religion, it is not that religion 
cannot furnish it, but because we want faith in its efficacy. — Ih. 

Grod elects all — who elect him. — Ih. 

The thoughts passing through an ordinary mind, would, in the 
course of a long life, if they could be collected, furnish more in- 
struction to mankind, than the works of Bacon or Newton. Shak- 
speare, of all mortals, has exhibited most of his mind — yet he con- 
cealed more than he displayed. — Ih. 

It resembles the eagle, that discovered upon the shaft on which 
he perished, a feather from his own wing. — WaUer. (^Borrowed hy 
Byron.^ 

VOL. II. — 20 



298 THE FORUM. 

SHAKSPEAKE A LAWYER. 

Falstaff's Legal Precisian. CMef Justice Gibson. Riddle v. 
Welden, 5 Wharton's Rep., 15. 

Lear — Act 1, scene 4; cited by Lord Eldon on a question of 
Insanity. — Lives of the Chancellors, vol. vii. p. 249. London 
edition. 

Action of battery. — Twelfth Night, Act 4:th, scene 1st. 

Action of battery. — Measure for Measure, Act 2nd, scene Ist. 

Have your action of slander, too. — Ih. 

I'll bring my action, — Taming of the Shrew, Act '^rd, scene 
Ind. 

Master Fang, have you entered the action ?— 2 H. IV., Act 2nd, 
scene 1st. 

My Lord, let's see the Devil's writ. — 2 H. VL, Act 1st, scene 
Aih. 

The windy side of the law. — Tioelfth Night, Act 3rc?, scene 4:th. 

Against the Law and Statutes. — Comedy of Errors, Act Mh, 
scene 1st. 

By the law of Nature and of Nations. — Henry V., Act Sd, scene 
4.th. 

Before I be convict by course of law. — Richard III., Act 1st, 
. scene 4:th. 

The law's delay, the insolence, etc. — JSamlet, Act Srd, scene 1st. 



ORNAMENTA RATIONALIA. 299 

The whole scene in Hamlet, Act bth, scene 1st. " Crowner's 
Quest Law." And see the note to Eeed's edition, vol. X., and 
Dame Hale's case. — Plowden's Reports."^ 

Constable. — MucTi-Ado About Nothing, Act Brd, scene Srd — 
througJiout. 

Whose suit is he arrested at ? — Comedy of Errors, Act ^th, scene 

4:fh. 

He is arrested at my suit. — 2 5". IV., Act Ind, scene \st. 
Twelfth Night, Act ^rd, scene 'ith. 

Under our arrest procure your sureties. — Richard II., Act 4:th, 
scene 1st. 

* In the first volume of Plowden's Reports, first pubUshed in 1578, 
when Shakspeare was fourteen years old, will be found the case of Hales 
V. Pettit, argued upon a demurrer. We shall divest it as much as possi- 
ble, of what may be called its artificial or technical character, in order 
that it may be more intelligible to the uninitiated. It was an action of 
trespass, which involved a question of title, to the property claimed by 
the widow of Sir John Hales. Sir John Hales leased the property by a 
lease from the Archbishop of Canterbury, as a joint-tenant with his wife. 
During the lease Sir John drowned himself — the land was claimed by the 
crown, and granted to Pettit. Sir John's widow entered upon the land, 
claiming it as successor to her husband. She was expelled from the pos- 
session, and for that expulsion brought her action of trespass. The 
question was, whether the property vested in the crown — Sir John being 
felo de se — or in his widow. 

The ablest lawyers of the time were employed, and the argument in- 
volved all the legal matters contained in the scene of the grave-digger in 
Hamlet, in relation to the death of Ophelia. The inquiry tm-ning upon 
the question, whether Sir John came to the water, or the water came to 
him. Shakspeare understood the point perfectly, and turned the plead- 
ings and decision into ridicule, in the dialogue between Hamlet and the 
grave-digger, to which the curious are referred. — Act V. 



3QQ THE FORUM. 

To stay the judgment. — H. VIIL, Act ^rd, scene 2nd. 

And I will have no attorney but myself. 

Attorneys are denied me, and therefore, personally, I lay my 
claim to my inheritance of free descent. 

I could be well content to be mine own attorney in this case. 

Doctor Drake introduces a variety of instances in which legal 
terms are used in their technical sense ; as thus, in King Henry 
IV., part 2d. : 

" For what in me was purchased. 
Falls upon thee in a much fairer sort." 

And purchase, it is here said, is used in a legal sense, and in 
contradistinction to an acquisition by descent. And again, in the 
Merry Wives of Windsor : 

" He lets the Devil have him in fee simple, with fine and recovery." 

Then in the Comedy of Errors: 

" He 's rested on the case." 

And again in the Merchant of Venice : 

" Go with me to a notary, and seal me there a bond." 

In Much Ado About Nothing, Dogberry charges the watch to 
keep their fellow's counsel, and their own. This is part of the 
oath of a Grand Jvaj — Then, in Othello this passage occurs : 



ORNAMENTA RATIONALIA. gQj 

" Where is that Palace whereinto foul things 
Sometimes intrude not ? who has a breast so pure, 
But some uncleanly apprehension 
Keeps leets and law days; and in sessions sits 
With meditations lawful." 

Again in Macbeth : 

" In these cases 
We still have judgment here, that we but teach 
Bloody instruction ; — ^which, being taught, returns 
To plague the inventor. Thus, even-handed justice 
Commends the ingredients of our poison' d chalice 
To our own lips. 

" Tell me what state, what dignity, what honor, 
Gans'tthou demise to any son of mine ?" 

DYING DECLARATIONS. 

The tongues of dying men enforce attention — 
Where words are scarce they're seldom spent in vain; 
For they breathe truth, that breathe their words in pain. 

Have I not hideous death within my view. 

Retaining but a quantity of life. 

Which bleeds away, even as a form of wax 

Resolveth from his figure gaunt the fire ? 

What in the world should make me now deceive. 

Since I must lose the use of all deceit ? — Richard 11. Act 2. 

Why should I then be false, since it is true. 
That I must die here, and live hence by truth ? 



302 



THE FORUM. 



There is more sublimity in Milton, but more close thinking in 
Young. — B, 

Like a fair house built upon another man's ground ; so I have 
lost my edifice, by mistaking the place where I have erected it. — 
Shalcspeare. 

There were many men equal to Lord Chatham as a thinker, 
many superior to him in erudition, but no one excelled him in the 
power of speech. A man who cannot speak, or who speaks unintelli- 
gibly, thinks for himself : a speaker thinks for thousands, by making 
thousands think as he does. — B. 

An eloquent writer is better for the future, — an eloquent speaker 
better for the present. The laurels of the former cluster about his 
grave, — those of the latter encircle his brows. One is a draft on 
time, — the other at sight. — Ih. 

GENIUS. 

" Grenius, not only lights its own fire," as Foster says ; " but 
supplies its own fuel," as I say. — Ih. 



Life is divided into three periods — ^youth, the imaginative ; mid- 
dle age, the passionate ; old age, the reflective. 

CONTEMPT OP POSTHUMOUS FAME. 

When Anacreon, towards the close of his life, was shown by his 
friends the vines and grapes with which his urn was to be festooned, 
he begged them to convert the grapes into wine, that he might 
enjoy them while living. 



ORNAMENTA RATIONALIA. gQS 



REVERSES OP FORTUNE. 

People think much more about them than they merit ; it is the 
world itself that makes them so diflS.ciilt to bear ; one can think and 
act as freely beneath the thatch of a cabin, as the gilded roof of a 
palace. It is the mock sympathy, the affected condolence for your 
fallen estate, that tortures you; the never-ending recurrence to 
what you once were, contrasted with what you are ; the cruelty of 
that friendship which is never content, save when reminding you of 
a station lost forever, and seeking to unfit you for your humble path 
in the valley, because your step was once proudly on the mountain 
top. I hate pity, — it is like a recommendation to mercy after the 
sentence of an unjust judge. — Lever. 

AFFECTED PITY. 

There is a cant condolence 
That gives more pain to the afflicted mind 
Than open scorn. I have been so bepitied 
By rascals, at the moment measuring 
Their height above me. With an eye as bold 
As frost — if frost could feel the cold it scatters, — 
By Heav'n ! I rather would endure the taunts 
Of my worst enemy. — Hayne. 

It is a mistake to suppose, that a transition from prosperity to 
adversity is more insupportable than one continuous course of adver- 
sity. A man who never saw a valley, knows nothing of the gran- 
deur of a mountain. A man who never saw a mountain, is ex- 
hausted with the sameness of a vale. In plain English, the ups 
and downs of life support each other. The memory of the past, or 
the anticipations of the future, chiefly make up all our present 
happiness or misery. — B. 



3Q^ THE FORUM. 

Fve searcli'd with care tlie page of Life, 

And learn' d of man the common lot : 
He lives — his days are toil and strife, — ' 

He dies — and is forgot ! — Anonymous. 

I have seen men in tempests of passion, — in the greatest depth 
of grief, — the former I have always found easily subdued, — the 
latter, readily consoled. All that is required is to know the spring 
of the heart. The grave is the only grief that has no temporal 
hope ; — there, the only cure is to look beyond it. — B. 

Poverty in itself is nothing, even to a generous spirit. It is the 
thousand meannesses to which it subjects you, — the thousand inso- 
lences to which you are exposed, — the chilling influence upon prac- 
tical charity, — ^that constitute its chief misery. — 76. 

A man is prouder in adversity than prosperity. In the former 
he builds upon himself, — in the latter, upon his fortune. — Ih. 

Suffering is best endured, by reflecting upon greater sufiierings 
of yourself or others. If this cannot be, it must be endured by 
gratefully meditating upon the great blessings you have enjoyed at 
the hands of a bountiful Creator, — which leave you largely a debtor 
on the score of happiness. If neither will answer, the only cure 
is silence or submission. — lb. 

RULING PASSION. 

The gratification of a ruling passion, is our chief pleasure, — ^its 
disappointment, our chief earthly penalty. Virtue has its en- 
joyments in any result, and is often more benefited by defeat than 
success. — Ih. 



ORNAMENTA RATIONALIA. 305 

The miser suffers more in parting with his money, to procure the 
slightest indulgence, than a poor man suffers in being deprived of 
such indulgence. — B. 



POWER. 

Whose smile was fortune, and whose will was power. 

Fortune attends his smile, ere she turns her wheel, and Fate 
awaits his nod, ere she signs hev fiat. 

I love — I am devoted to my profession, but at times I almost 
loathe it, when I see children struggling in hostility over a parent's 
grave ; or, when I behold Mammon thrusting his guilty gilded 
hand between hearts that were made for each other — between 
"brethren who should dwell together in unity." 

Climbing to the nest of the vulture, and finding a trembling dove 
within. — Moore. 

Nothing tranquillizes excited and angry passions more, or conveys 
a more salutary lesson to the mind, in soothing or composing it, 
than the sight of a sleeping infant. — B. 

BEAUTIFUL THOUGHT. — YOUNG WOMAN. 

The sweet moon on the horizon's verge — a thought matured, but 
not uttered — a conception warm and glowing, not yet embodied — 
the rich halo which precedes the rising sun — the rosy down upon 
the ripening peach. 

A flower — which is not quite a flower, 
Yet is no more a bud. 



306 THE FORUM. 

Komantic love is like the cataract, 
Whicli foams and rages, while impediments 
Obstruct its swelling surge : give it full sway, 
And lo ! its silv'iy sheen glides gently on, 
And lulls itself to sleep with its own music. — B. 

VIRTUE. 
'Tis virtue alone true enjoyment can give. 

The enjoyment that springs from on high; 
'Tis virtue that teaches the way we should live, 

And points out the way we should die. — lb. 

Silent they sit. 
All faculties absorb' d by black despair; 
The world has vanish' d, and the soul is dead, 
To earthly sympathies — to earthly care ; 
Brooding alone on its eternal fate. 
And prostrate in the presence of its God. — Ih. 

SILENCE. 

Silence, the watchful sentinel of night, 
With noiseless step and undiverted ear, 
Challeng'd each sound. — Ih. 

Prayer was not invented for man — man was born to pray. 

Man was not made for the Sabbath, but the Sabbath was made 
for man. 

Like a man who walks backward to destruction, and looks at the 
stars or sun to the last. 

A lily lolling on a rose. 



ORNAMENTA RATIONALIA. 307 

The argument resembles a peacock's tail — ^filled with beautiful 
plumage, but supported upon deformed and odious legs. 



ELOQUENCE. 

Men, it is said, are won through the eyes — women through the 
ears. 

ATHEISM. 

The doctrine of an Atheist is not more horrible than it is piti- 
able. "Who, in the world," says an incomparable divine,* "is a 
verier fool, a more ignorant, wretched person, than he that is an 
Atheist ? A man may better believe there is no such man as him- 
self — that he is not in being — ^than that there is no Grod ; for him- 
self can cease to be, and once was not, and shall be changed from 
what he is ; and in very many periods of his life, knows not that 
he is; and so it is every night with him when he sleeps. But none 
of these can happen to Grod, and if he knows it not, he is a fool. 
Can any thing in this world be more foolish, than to think that all 
this rare fabric of heaven and earth can come by chance, when all 
the skill of art is not able to make an oyster ? To see rare effects, 
and no cause ; an excellent government, and no prince ; a motion, 
without an immovable ; a circle, without a centre ; a second, with- 
out a first ; a thing that begins not from itself, and therefore not to 
perceive there is something whence it does begin, which must be 
without beginning. These things are so against philosophy and 
natural reason — to say nothing of the lights of revelation — that he 
must needs be a beast in his understanding, that does not assent to 
them. This is the Atheist : 'the fool hath said in his heart, there 
is no Grod :' that is his character. The thing framed says, that 
nothing framed it ; the tongue never made itself to speak, and yet 

* Bishop Jeremy Taylor, 



308 THE FORUM. 

talks against him that did ; saying, that "which is made, is ; and 
that which made it, is not. But this folly is as injEinite as hell, ^s 
much without light or bound, as the chaos, or the primitive no- 
thing. But in this the Devil never prevailed very far ; his schools 
were always thin at these lectures. Some few people have been 
witty against G-od, that taught them to speak before they knew to 
spell a syllable ; but either they are monsters in their manners, or 
mad in their understandings, or ever find themselves confuted by 
a thunder or a plague, by danger or death." 

The French philosophers having assembled, their conversation 
turned on the question, ^^ What is the soul?" After various silly 
suggestions by others, Helvetius directed the windows to be closed : 
" Now," said he, " you see we are in the dark — let them bring me 
a light." They gave him a red-hot coal, and blowing it, he lit a 
wax taper. "There," said he, "I have the soul ! I have the life 
of the first man ; the fire which I have used is everywhere — in 
the stone, in the woods, and in the atmosphere. The soul is fire." 
And saying this, he lit another taper. "Now you see," said he, 
"my first man has transmuted life without the original Creator." 
" Ah !" said Diderot, who was present, " observe, then, that you 
have proved the existence of Grod, by attempting to deny it. I 
grant that life may be in the fire, but it is necessary that there 
be one who has lit the fire. It will not be lighted by itself." 

The man who has sufi'ered the greatest evil in life, can sufi"er no 
more. Like Death, it cures everything here. — B. 

As there is morning, noon, evening, and night in each day, so 
is there in the seasons, — spring, summer, autumn, and winter; — 
and to those do the seasons and changes in the life of man cor- 
respond. — lb. 



ORNAMENTA RATIONALIA. 309 

RULING PASSION. 

A poor man stating his inability to purcTiase some small article, 
and referring, witli something like envy, to the superfluous wealth 
of a miser, B. said to him : "My good friend, your condition is at 
least as good as his : you suffer in not getting what you want — ^he 
suffers either in not getting, or in getting what he wants. — B. 

Is this well done, my Lord ? 

Have you put off all sense of human nature ? 

Keep a little, a little pity, to distinguish manhood. 

Lest other men, though cruel, should disclaim you, 

And judge you to be numbered with the brutes. — Rowe. 

Being asked, why I was so firm a believer in the Saviour, I re- 
plied, " Both from reason and faith." Reason itself shows that, 
without faith in the doctrine of Christianity, no man could be 
saved. — B. 

A well provided breast hopes in adversity, and fears in pros- 
perity. — Horace. 

TIME. 

The man that takes twice as much time to accomplish an object as 
is necessary, abridges his life one-half, and nearly destroys the 
other half by an acquired sluggishness and supineness. — B. 

Why is it, that you trim your plants, and your trees ? To remove 
what is decayed and offensive to the sight, and to promote the 
growth of that which remains. The very storms that visit the 
forest, remove the rotten or useless portion of the limbs and branches, 
and thereby increase their general growth and beauty ; — such are 
the benefits of adversity. 



310 THE FORUM. 

SLANDEE. 

A slave, whose gall coins slander like a mint. — 

Troilus and Cressida. 

A fellow, with Ms wit in his belly, and his guts in his head. — Ih. 

ROGUES. 

Men who do not watch and pray — but watch to prey. 

She died, — but not alone ; she held within 

A second principle of life, which might 
Have dawn'd a fair and sinless child of sin ; 

But clos'd its little being without light, 
And went down to the grave unborn — wherein 

Blossom and bough lie wither'd with one blight. — Byron. 

In vain, the dews of Heaven descend above 

The bleeding flower, and blasted fruit of love. — Ih. 

A pebble, in the streamlet scant. 

Has turned the course of many a river ; — 
A dew-drop, on the baby plant. 

Has warp'd the giant oak forever. 

Bring me a constant woman to her husband — 

One that ne'er dream' d a joy beyond his pleasure; 

And to that woman, when she has done most. 

Yet will I add an honor, — a great patience. — Henry VIII. 

Ten thousand fools, knaves, cowards, lump'd together. 
Become all-wise, all-righteous, and all-mighty.— Tom w^r. 



ORNAMENTA RATIONALIA. 311 

The ruling passion, is a substitute for courage. If a man be a 
coward, only offend bis ruling passion, and be becomes brave in its 
defence. Look at tbe miser defending bis gold, &c. ! 



EPITAPHS. 

Torn from us in tbe spring tide of the beart. 
Sunder' d from those dear arms that clung around thee 
In all thy loveliness, what now remains 
With the survivors to allay their griefs. 
But the rich memory of thy spotless life, 
Radiant with hope and redolent with virtue, 
Pointing to those bright realms of endless joy. 
Whose earthly portal is the peaceful grave ? — B. 

Exalted virtue, and undying faith 

In the atoning blood of Calvary, 

An earnest of beatitude to come. 

Why should survivors mourn the pious dead. 

Who, having shaken off life's weary load, 

Mount to the regions of eternal bliss. 

And rest upon the bosom of their God ? — Ih. 

Earth has no rage like love to hatred turn'd, 
Nor hell a fury, like a woman scorn'd. — Congr eve' s Mourning 

Bride, end of drd Act. 

Music has charms to soothe the savage breast. 

To soften rocks, or bend the knotted oak. 

I've read that things inanimate have mov'd. 

And, as with living souls, have been inform' d 

By magic numbers and persuasive sound. — lb., 1st Act. 



312 THE FORUM. 

Then chafed 
Thy temples till reviving blood arose, 
And like the morn, vermilioned o'er thy face ; 
Heaven ! how did my heart rejoice and ache, 
When I beheld the day-break of thy eyes, 
And felt the balm of thy respiring lips. — Congreve's Mourning 

Bride, 2nd Act. 

How reverend is the face of this tall pile ! 
Whose ancient pillars rear their marble heads 
To bear aloft its arch'd and pond'rous roof, 
By its own weight made steadfast and immovable, 
Looking tranquillity. — lb., Scene 3rc?. 

[^Said to he one of the most poetical passages in the English lan- 
guage.'] 

ELOQUENCE. 

Whene'er he speaks, Heav'n ! how the list'ning throng 

Dwell on the swelling music of his tongue : 

And when the power of eloquence he'd try. 

Here lightning strikes you — there soft breezes sigh. — Garth. 

TEMPERANCE. 

The Lacedemonians, who were at one time a very licentious and 
drunken people, were cured of their love of strong drink, in this 
manner : — The slaves were forced to drink until they became in- 
toxicated, and then placed in the amphitheatre during the games. 
This double degradation disgusted every one. — Plutarch. 

Noah's drunkenness has been accounted for, upon the supposi- 
tion that he was not aware of the influence of wine. 



ORNA.MENTA RATI ON ALIA. 3^3 

SLEEPING FLOWERS. 

Almost all flowers sleep during the night. The marigold goes 
to bed with the sun, and with him rises weeping. Many plants 
are so sensitive that their leaves close during the passage of a 
cloud. The dandelion opens at five or six in the morning, and 
shuts at nine in the evening. The "goat beard" wakes at three 
in the morning, and shuts at five or six in the afternoon. The 
common daisy shuts its blossom in the evening, and opens its "day's 
eye" to meet the early beams of the morning sun. The crocus, 
tulip, and many others, close their blossoms at difierent hours to- 
wards evening. The ivy-leaved lettuce opens at eight in the morn- 
ing, and closes forever at four in the afternoon. The night-flower- 
ing cereus turns night into day. It begins to expand its magnificent 
sweet-scented blossoms in the twilight; it is full-blown at midnight, 
and closes never to open again with the dawn of day. In a clover 
field not a leaf opens until after sunrise ! So says a celebrated 
English author, who has devoted much time to the study of plants, 
and often watched them during their quiet slumbers. Those plants 
which seem to be awake all night, he styles " the bats and owls of 
the vegetable kindom." — Extract. 

OBSTINACY. 

An obstinate man does not hold opinions, but they hold him ; 
for, when he is once possessed of an error, it is like a devil, only 
cast out with great difficulty. Whatsoever he lays hold on, like a 
drunken man, he never loses, though it do but help to sink him 
the sooner. His ignorance is abrupt and inaccessible, impregnable 
both by art and nature, and will hold out till the last, though it 
has nothing but rubbish to defend. It is as dark as pitch, and 
sticks as fast to anything it lays hold on. His skull is so thick, 
that it is proof against reason, and never cracks but on the wrong 
side, just opposite to that on which the impression is made, which 

VOL. II. — 21 



314 THE FORUM. 

surgeons say does not happen very frequently. The slighter and 
more inconsistent his opinions are, the faster he holds them, other- 
wise they would fall asunder of themselves ; for opinions that are 
false ought to be held with more strictness and assurance than 
those that are true, otherwise they will be apt to betray their 
owners before they are aware. He delights most of all to differ in 
things indifferent : no matter how frivolous they are, they are 
weighty enough in his weak judgment; and he will rather suffer 
self-martyrdom than part with the least scruple of his freehold, for 
it is impossible to dye his dark ignorance into any lighter color. 
He is resolved to understand no man's reason but his own, because 
he finds no man can understand his but himself. His wits are like 
a sack, which the French proverb says is tied faster before it is full 
than when it is ; and his opinions are like plants that grow upon 
rocks, that stick fast though they have no footing. His under- 
standing is hardened, like Pharaoh's heart, and is proof against all 
sorts of judgments whatsoever. — Extract. 

The iron entered into his soul. — Sterne. — (Bible.') 

There is nothing earthly that is not dependent upon something 
else earthly, while all depend upon the Creator. — B. 

His tongue took an oath. 

But his heart was unsworn. — Euripides. 

SPIRITUALISM AND INFIDELITY. 

One of the most remarkable things with the Spiritualists is, that 
while they believe every thing that few other persons can believe, 
they deny every thing that almost all reasonable men fully believe 
— the truths of Christianity — all the mysteries of which are no- 
thing to Spiritualism, and have gospel authority. 



ORNAMENTA RATIONALIA. 3^5 

BEAUTIFUL PHRASE. 

On my eyelids sliall conjecture hang. — Measure for Pleasure. 

What reinforcement we shall gain from hope, 
If not; what resolution from despair. — Milton. 

LEGAL LIABILITY OF A PHYSICIAN. 

The responsibility of a physician is rarely understood — though 
it ought to be distinctly and clearly understood. Death happening 
under his hands, when he is engaged with intent to cure or prevent 
disease, in the eye of the law, is no felonious homicide, though greater 
skill might have saved the patient. And the like of a surgeon. And 
the law goes further : for, if men be not licensed according to the 
statute, though liable to the penalties of the statute, a mere mis- 
chance would not make them liable for murder, or even man- 
slaughter. Gi-ross negligence, however, or culpable neglect, or in- 
excusable ignorance, would materially alter the case. 

POISONS. 

Arsenic, which of all poisons most readily produces death, is 
most readily administered without detection — but most readily 
detected, having been administered. — B. 

The grave closes all accounts with this world, and opens them 
with the next. — lb. 

PRUDENCE IN TAKING VOUCHERS. 

The man who, in his business transactions in life, relies upon the 
honesty of all men, necessarily relies upon their memory and accu- 
racy. They may be honest, and still he may suffer from his confi- 
dence. — 76. 



316 



THE FORUM. 



MORAL INSANITY, 



If it mean anything, it means that insanity which arises from one 
of two causes, and, perhaps, at times, from both. In some cases, it 
may result from the physical structure or condition of the man — 
great fulness of habit — peculiar tendency of the blood, contributing 
to t\iQ creation of inordinate animal passions, &c. Or where, by 
had example and long habit of any animal excess, the mind loses 
its control, and the will its power, and the beast conquers the man, 
— this results in insanity or fatuity. 

0, she doth teach the torches to burn bright ! 

Her beauty hangs upon the cheek of night, 

Like a rich jewel in an Ethiop's ear — 

Beauty too rich for use — for earth too dear. — SJcakspeare. 

GRAVITATION.* 

Time, force, and death, 
Do to this body what extremes you can ; 
But the strong base and building of my love 
Is, as the very centre of the earth. 
Drawing all things to it. — lb. 

if a man is under the influence of any passion more powerful 
than the love of truth, he swerves from the truth. — Bacon. 

Agnus was the only combination which the wolf, learning to 
«pell, could make out of the twenty-four letters of the Alphabet. — 



* Written long before Newton's discovery. 



ORNAMENTA RATIONALIA. g]^^ 

METAPHYSICS. 

The souls of idiots are of the same piece as those of statesmeu, 
but now and then nature is at fault, and this good guest of ours 
takes soil in an imperfect body, and so is slackened in showing her 
wonders ; like an excellent musician, that cannot utter himself upou 
a defective instrument. — Bacon. 

There is this wonderful benignity in the providence and economy 
of Grod, that our very sufferings produce our relief, from their 
excess. Great pain renders us insensible to pain. Great heat 
produces, naturally, refreshing showers. — B. 

Never despair — and, when you are in the right, never sui-render. 
—lb. 

God only, can cure the wounds that He inflicts. — Scott. 

SLAVERY. 

I wonder if his appetite was good. 

Or if it were, if also his digestion. 

Methinks, at meals, some odd thoughts might intrude. 

And conscience ask a curious sort of question 

About the right divine, how far we should 

Sell flesh and blood. — Byron. 

MAJESTY, 

Dies not alone, but like a gulf doth draw 
What's near it — with it. It is a massy wheel, 
Fixed on the summit of the highest mount, 
To whose huge spokes ten thousand lesser things 
Are mortised, and adjoin' d, which, when it falls. 
Each small annexment, petty consequence, 
Attends the boisterous ruin. — Hamlet. 



313 THE FORUM. 

ARISTOCRACY AND DEMOCRACY. 

The aristocracy pull off their hats to those whom they hate. 
The Democracy will not do it to those whom they love. There is 
more policy in one — more honesty in the other. — B. 

PRIESTCRAn. 

Thy priestly craft 
Is so engrafted on thy loyal stock, 
That, like the ivy, it o'ershadows it. 
And eats the heart out. What dost thou mean ? 
Equivocate no longer — speak thy fears. — Ih. 

Pardon, my liege ! 
My thoughts, being dedicate to things above, 
Chastised by penance and austere reproof. 
Consort not with the play of youthful blood. 
And look, perchance, too sternly on those faults 
Which nature unreformed shall justify. — Ih. 

If every knave build on his own construction. 

Death's decrees shall lose their bloody impress. 

And become a passport to a regal entertainment. — Ih. 

Princes, like the stars. 
Were made to gaze at, by vulgar eyes. 
With awe and reverence — to worship not to wed. — Ih. 

What change can prove unwelcome to the heart 
That groans beneath the heaviest penalties 
That disappointed and perverted love 
Can heap upon it ? — Ih. 



ORNAMENTA RATIONALIA. 3]_9 

Talk not of hearts — leave those to brainsick boys 
And wild romance. — B. 



bard condition ! 
That makes the princely state in wretchedness 
Supreme, as well as pride. The humble hind. 
Who toils and sweats from morn till eventide, 
Still sits supreme upon his bosom's throne, 
In native majesty, and sways the heart 
To his own purpose, loves and is belov'd, 
And in the dear delights of mutual joy 
Looks down upon the worldly pageantry. 
The pride, the pomp, the tumult and parade 
That hide the anguish'd soul, and drown its groans. — Ih. 

CANDOR. 

It wears the livery of Truth, fair Madam ! 
The vesture of the starry court above. 
Where virtue reigns supreme, and the free soul 
Owes fealty only to the King of kings. — Ih. 

I nor dispute, nor doubt your Highness' will ; 

That is omnipotent, and, as a subject, 

A loyal and a true one, I submit. 

But when your G-race holds parley with my thoughts, 

My thoughts niust speak, and say it is not well. — Ih. 

The withered heart that throbs in this lone breast. 
And, like a captive bird, assails its bars. 
In frail and fruitless hopes of liberty. 
Attests the fervor of my love for thee. — Ih. 



320 THE FORUM. 

Kemember, thou art escort to a queen — 

That the blue waves, which sever adverse shores 

Are Lethe's waves — oblivious of the past ! — B. 

I'll be her escort; and with winkless eye 
I'll play the Dragon to the Hesperian fruit, 
And guard it, night and day. — Ih. 

How times are changed ! now Priam plays the lover, 

And England's Helen rushes to his arms. 

While all the pride and pomp of chivalry 

Smile on the triumph of threescore and ten — 

The Kose of Spring clasped in the arms of Winter ! 

The Aloe would befit his highness better — 

It blooms but once in every sixty years. — Ih. 

I've borne these ribald jests 
Beyond that point where patience is a virtue. 
Provoke my rage no longer.— 'Tis not meet 
That we should prattle of our inmost griefs : 
But there are depths within this wounded heart, 
Which, prob'd unskilfully, result in death 
To patient or physician. — Ih. 

We '11 talk no more of women ; 
The winds and waves shall now our topics be ; 
They 're not more changeful, and less perilous.— 76. 

Oh, Alexander ! what a soul was thine ! 
That in the prime of manhood and of love — 
Deck'd with a thousand triumphs — could resist 
The matchless Persian beauty— bright Statira. — Ih. 



ORNAMENTA RATIONALIA. 321 

The heart cajj never learn 
To throb by rule, or shun what it adores. 
Friendship may swell to love, and fill the soul, 
But love ne'er shrinks to friendship, till it dies. 
Extremes beget extremes, and sometimes hate 
Usurps the throne of tenderness and joy, 
And riots in their ruin. — But true love 
Shudders at diminution, as at death. 
Nay, it is death — the glowing heart is cold, 
Is cheerless, all its charms are lost, 
And from its former height it sinks, at once, 
To the low level of instinctive brutes. — B. 

LOVE. 

"Why cease to love — or cease to be beloved ? 

The Great Creator taught the breast to glow 

With generous emotion, and to cling. 

Close as to life, to sympathetic arms. 

What is the world without it, what the glare 

Of pride and pomp — of wealth and pageantry ? — 

They cannot buy, vain-glorious as they are, 

The least emotion that I feel for thee. 

Who is the richer, then ? The wretch that hugs 

His golden store and nightly gloats upon 't. 

Or the warm spirit that shakes ofi" its chains ? — lb. 

BEAUTY. 

Would you have stars or liquid diamonds ? gaze 
On her bright eyes — which light the way to joy. 
Pearl ? call to mind the treasure of that mouth ; 
Coral ? behold her lip — but, oh ! beware 
You linger not amidst the sweet enchantment — 
This labyrinth of love ! — No clue can save you. — lb. 



322 THE FORUM. 

How should it be 
Wten Youth 's consigned to tlie embrace of Time, 
When life is fettered in tbe arms of Death ? 
Canst read the human face, and not perceive 
How fate lies lurking in the wreathed smile ? 
Decrepit age, corruption and decay 
Prey on the vernal cheek, and blight its bloom. 
The temple, where this union is confirmed. 
Should be a sepulchre — a charnel house — 
And bridal robes, and jewels, and parade, 
G-ive place to sackcloth, shrouds, and tears of blood. — B. 

The feeblest impulse that affection prompts. 

Is worth a kingdom. — Kingdoms cannot buy it. 

It springs spontaneous in the human heart, 

Unbrib'd — unfetter'd — precious as the blood 

That thrills in circling eddies through the veins ? — 

Offspring and guardian of life's citadel — 

Millions of tribute which the unwilling hand 

Pays, while the soul withholds its sympathy. 

Or shrinks from the exaction ; what are they 

But dull and slavish homage from a slave, 

Griving what fear forbids him to refuse, 

Or power resistless ever may enforce ? 

What mutuality can this bespeak 

Beyond external seeming ? — the base traffic 

Of sordid worldlings — wedded to themselves — 

Griving to take — or yielding to receive ! — Ih. 

The whole globe, 
Outstretched between the soul and its desires. 
Were shorter than the tiresome, tedious league. 
That turns the back on joy. — Ih. 



ORNAMENTA RATIONALIA. 323 

Who dares to love, yet dares not show his love 

To the dear object that inspires it ? 

Say she's a queen — in love she is a subject ; 

The crown begirts her head, but not her heart — 

The heart's a woman's throne — 't's there she reigns — 

'T is there she rules — is ruled, and aust be won. — B. 

He who sins for woman. 
Builds upon Adam and prescriptive right. — 1 h. 

Amazed — confounded — ^blinded with the blaze 

Of concentrated beauty. — 'Tis gone, and all is gloom. — Ih. 

LOVE AGAINST HONOR. 

Her youth — ^her charms — 
Enough to warm an anchorite to love. 
Opposed to knightly honor and renown. 
Fade like the phantom of distempered minds 
At the return of reason. Valiant sir, 
Pause not to weigh your princely dignity 
Against a woman's smile — or both are lost. — Ih. 

My gallant friend, 
If royalty derived its stamp from nature, 
Or worth inherent challenged for itself 
The rev'rence and submission which we pay 
To worth presumptive — or if regal power, — i 

The right to sway the destiny of others, — 
Sprung only from a conquest o'er ourselves. 
Thou wert a native monarch. — Tb. 

Faults self-reproved are more than half atoned. 

And prompt repentance does the work of mercy. — Ih. 



324 THE FORUM. 

This is a bond of hands, and not of hearts. 
Is it then generous — nay, is it just. 
That doting age, forgetful- of the tomb, 
Should thus stretch forth its sickly, palsied hand, 
To crop the bloom of youth and blight her joys 
Beyond all hope of a reviving spring ? — B. 

T place a crown of thorns upon her head, 
And like a flower upon the blasted heath. 
She withers, pines, and dies. — Ih. 

The glare of day — the grosser glare of pomp 

Are past, and now the noon of night prevails. 

Distracted and excursive thoughts return, 

Freighted with good or ill, and cast their load 

Of joy or grief on the expectant heart; 

And still how sweet — how beautiful is night ! 

How mild, yet how luxuriant are the rays 

Which beam from yon cerulean monarchy — 

Pale Cynthia and all her starry train. 

O'er a tempestuous world, lull'd to repose — 

Transient, short-liv'd repose ! To-morrow's dawn 

Shall wake the slumberers and renew their toil. — Ih. 

Bid me be dumb : but let me gaze upon thee. 

Till the fraught soul shall surfeit on thy charms. — Ih. 

ANCESTRY. 

What lineage has yon fair and radiant star, 
That bears the stamp of an immortal hand ? 
What orbit does it move in but its own ? 

shines in its own pure and pristine light : — 
Not like your fav'rite moon, in borrow'd beams I — Ih. 



ORNAMENTA RATIOXALIA. 325 

Where and who am I ? 
Are these the sacred precincts of the palace ; 
Or has my fancy, straying from the truth, 
Led me into some desert drear and wild — 
Some lawless haunt, where ruffian robloers lurk 
To prey on the defenceless ? — B. 



VALOR. 

Put up your weapon till the time shall serve. 
This is no scene for blood. Valor that needs 
The tongue's loud flourish, and a lady's eye, 
jMay well be doubted, though I doubt not yours ; 
Your courage, sir, will keep. — So let us part. 
How we again shall meet — ^how part when met. 
Let time and fate determine. — Ih. 



What, tlien, fair Madam, bu^t a forfeit life 

Which none will take more freely than I give — 

What is it, but a burthen to be borne. 

From day to day, till death removes the load ? 

I would not wound thy ear with my fell thoughts ; 

But still, that hand were dearest, next thine own. 

That cuts the tenure of my weary hours, 

And soothes me to a long and last repose. — Ih. 

The honors that I wear were dearly won, 
By nights of toil — by days of peril past ; 
And he that tears the garland from Tiiy brow, 
To deck his oion, shall leave these temples cold, 
And rend his trophies from the grasp of death. — Ih. 



326 "THE FORUM. 

Tinsel and trappings still have virtue in tliem, — 
A cloak of frieze would cover twenty lords. — B. 

FRIENDSHIP. 

For weary — anxious years, 
In camps — in courts — in grief and merriment, 
We liave been more than brothers : tell me, then, 
"What good or evil has befallen thee. 
That I may share the one — redress the other ! — Ih. 

Shame never dared to sit upon that brow ; 
'T is honor's throne. — Didst mark amid the throng 
Of Lords and Nobles, how supreme he stood — 
Blanchless and dauntless, while his eagle eye 
Surveyed, undazzled, all the glare of pomp, 
As matters most familiar. — What to him 
Who wears great nature's patent in his breast, 
Are all the tinsell'd trappings of a Court? — Ih. 

nature's nobleman. 

The lower his descent. 
The higher his desert. — Thus to emerge 
From the dark, struggling, adverse clouds of fate, 
Like the bright sun from a tempestuous sky, 
Or the dark bosom of the stormy main, 
All radiant and majestic in his glory. 
How much more godlike, than when rosy hours 
And gentle fanning zephyrs cling around 
His golden chariot, and enamor'd shed 
Their fragrant incense o'er its burnish' d track ! 
I tell the, Charmean, forty thousand lords, 



ORNAMENTA RATIONALIA. 327 

Fair weather lords, in their united worth, 
"Were not the tithe of nature's nobleman ! 
If thou wouldst bind thy mistress ever to thee, 
Devise some means consistent with my fame, 
To win this truant back. — B. 



0, love, mysterious and capricious love. 

Though scorn' d so long, at length thou art revenged 

On my poor heart ! — lb. 

MARRIAGE. 

United in affection as we are. 
And waiting but thy blessing on the union. 
Thou may'st dispense with tedious ceremony. 
When votaries reluctant kneel before thee. 
Omit no form that binds them to each other. 
Lest struggling, they escape and shame thy work : 
That is a work of form, and must be formal, 
Or it is nought : but here our willing hearts 
Are coupled to thy hand — and, though unbound. 
They cleave together, and require no tie 
But thy frail outward tenure. — 

SACRED EXTRACTS. 

A mean estate is not always to be contemned : nor the rich that 
is foolish to be had in admiration. — Ecc. ch. xxii. 

If thou hast gathered nothing in thy youth, how canst thou find 
anything in thy age. 

A woman, if she maintain her husband, is full of anger, impu- 
dence, and much reproach. 



328 "T^^ FORUM. 

Many have fallen by tlie edge of tlie sword, but not so many as 
have fallen by the tongue. 



Love thy money for thy brother and thy friend, and let it not rest 
under a stone to be lost. 



There is no riches above a sound body, and no joy above the joy 
of the heart. 



In all thy works be quick, so shall there no sickness come unto 
thee. 



If thou be made the master of a feast, lift not thyself up, but 
be among them as one of the rest ; take diligent care for them, and 
so sit down. 



A concert of music in a banquet of wine, is as a signet of car- 
buncle set in o'old. 



If thou be among great men, make not thyself equal to them ; 
and when ancient men are in place, use not many words. 



Do nothing without advice, and when thou hast once done, re- 
pent not. 

Riches and strength lift up the heart, but the fear of the Lord is 
above them both : there is no want in the fear of the Lord, and it need- 
eth not to seek help. 



ORNAMENTA RATIONALIA. 329 

Wisdom is better than rubies, and all the tbings tbat may be 
desired are not to be compared to it. — Proverbs yiii. 11. 

There is that scattereth and yet increaseth; and there is that 
withholdeth more than is meet, but it tendeth to poverty — Proverbs 
xi. 24. 

How much better is it to get wisdom than gold ? and to get under- 
standing rather to be chosen than silver. — Proverbs xvi. 16. 

A friend loveth at all times, and a brother is born for adversity. — 
Proverbs xvii. 17. 

Even a fool when he holdeth his peace is counted wise ; and he 
that shutteth his lips, is esteemed a man of understanding. — Pi-o- 
verbs xvii. 28. 

Thy youth is renewed like the eagle's. — Psalm ciii. 5. 

Like grass which groweth up and flourisheth, in the evening it is 
cut down and withereth. — Psalm xc. 

Man goeth forth unto his work, and to his labour, until the eve- 
ning. — Psalm, civ. 23. 

They that sow in tears, shall reap in joy. — Psalms. 

For a thousand years in thy sight are but as yesterday when it 
is past, and as a watch in the night. — Psalm xc. 4. 

The Lord is King, be the people never so impatient. He sitteth 
VOL. n.— 22 



330 THE FORUM. 

between the cherubims, be the eartli never so unquiet. — Psalm 
xeix. 

Thou hast put away mine acquaintance far from me ; thou hast 
made me an abomination unto them. I am shut up and I cannot 
come forth. — Psalm Ixxxviii. 8. 

Blessed is the people. — Psalm Ixxxix. 15. 

Who maketh the clouds his chariot; who walketh upon the 
wings of the wind. — Psalm civ. 3. 

Or ever the silver cord be loosed, or the golden bowl be 
broken, or the pitcher be broken at the fountain, or the wheel 
broken at the cistern. 

Then shall the dust return to the earth as it was, and the spirit 
shall return unto God who gave it. — Ecclesiastes xii. 6, 7. 

The heart of fools is in their mouth, but the tongue of the wise 
is in their heart. 

TIME. 

Day unto day uttereth speech — night unto night showeth know- 
ledge. Let us, therefore, so number our days, that we may apply 
our hearts unto wisdom. For wisdom is better than rubies, and 
all things that may be desired, are not to be compared to it. 

I will utter dark sayings of old. 

ENGLAND. 

The harvest of the ocean is her revenue, and she is the mart 
of nations. 



ORNAMENTA RATIONALIA. 33X 

Do swans flock witli ravens, or lambs herd with wolves ? 

Open tliy mouth for the dumb — in the cause of all such as are 
appointed to destruction. 

Open thy mouth, judge righteously, and plead the cause of the 
poor and needy. 

As for man, his days are as grass, as a flower of the field, so he 
flourisheth. For the wind passeth over it, and it is gone, and the 
place thereof shall know it no more. 



ANECDOTES AND WIT 



THE BENCH AND BAR. 



CHAPTER XY. 

1. Upon one occasion, when Edward Tilghman, a co- 
temporary and equal of Lewis and Ingersoll, and a lawyer 
unequalled upon questions involving title to real estate, 
was engaged in a very heavy and complicated ejectment, 
with two colleagues much younger than himself, con- 
trary to rule, he determined to open the cause, and sub- 
mit the evidence in behalf of the claimant. In doing 
so, he rendered everything so plain, so regular, and so . 
conclusive, that when he read the last paper referred 
to in his brief of title — he threw it down, and with 
a smile upon his face, after having so satisfactorily ac- 
complished his task, turned to the Court and jury, and 
triumphantly exclaimed, "Now, gentlemen, I have 
done. I have opened my case, I have exhibited my 



334 THE FORUM. 

proofs, and I leave it to my colleagues to lose tlie cause 
— ^if they can^ 

2. I remember a striking instance of the importance 
of what is called " action,'' early in my own. practice. A 
gentleman sought legal redress for one of the deepest 
wounds that could he inflicted upon his domestic peace. 
His voice was unbroken — his brow placid — his eye ray- 
less — ^his breast tranquil; his whole soul obviously sleep- 
ing upon the subject of his complaint. From his charac- 
ter, every word that he uttered was believed. But I 
told him frankly, that if he related his story in the 
same unimpassioned manner on the approaching trial, 
it never would be credited by the jury, as his heart 
seemed to bear testimony against his tongue. The 
prediction was realized. He told the story in the same 
cold and listless way — he was totally unimpeached and 
uncontradicted ; but, influenced by the ordinary prin- 
ciples that govern the determinations of men, the jury 
utterly rejected the testimony, and the defendant was 
acquitted. 

3. Two young men called one morning upon Mr. Du- 
ponceau, and one of them said : " Mr. Duponceau, our 
father died, and made a will." 

" Is it possible ?" said Mr. Duponceau. " I never 
heard of such a thing before ! A most remarkable 
thing, indeed !" 

" Why, Mr. Duponceau, we thought it was an every- 
day affair." 



ANECDOTES AND WIT. 335 

" I never heard of such a thing before, I assure you." 

" Well, then, sir, if there is any difficulty about it, 
we wish your services," at the same time handing him 
a fee. 

" Oh !" said Mr. Duponceau, ^^ I think I know now 
what you mean. You mean that your father made a 
will, and died. Yes, yes, that must be it." 

4. Mr. Duponceau, as is well known, was a very ab- 
sent man, very shrewd and somewhat deaf. One day, in 
the midst of a cause, he suddenly gathered up his pa- 
pers, and rushed out of court, leavmg the Court, counsel, 
and jury, in mute astonishment. After waiting a few 
minutes for his return, one of the members of the bar 
went over to his office to see what was the matter, and 
to bring him back. Mr. Duponceau was found almost 
breathless, and apparently much excited. 

" Have they put it out ?" he inquired of his visitor. 

" Put what out, Mr. Duponceau ?" 

" The fire ; I thought they said that the court-house 
was on fire." 

" Nothing of the kind, my dear sir, has happened. 
Pray, come back again." 

" Well, I am out of breath now, and very much ex- 
hausted by my fright. I will be over in a few minutes. 
Make my apologies to the Court." 

The visitor departed ; and the learned counsel, who 
had been unexpectedly caught in a tight place in the 
trial of the cause, looked into some authorities, and came 



336 THE FORUM. 

back to court quite composed, prepared to surmount 
the difficulty, and proceeded with the cause. 

5. Quintilian seems to think that a mean, careless, 
dirty dress, worn by an accused party, has at times had 
wonderful effects in his favor. That must depend very 
much upon the nature of the charge. We remember a 
case in which a wretched woman was charged with keep- 
ing a house of ill-fame. She appeared before the Court 
in apparently the most squalid poverty ; and no one 
could suppose that she had been the recipient of those 
vast illicit gains with which she was charged. The 
Court and jury were much impressed in her favor. 
The next day, however, no doubt under advice, when 
she appeared, she was richly apparelled in all the 
colors of the rainbow. This produced an immediate 
change, and a conviction followed. 

6. Judges and lawyers, in England, it is said, scarcely 
ever die poor. "Lawyers, among us," says Henry 
Clay, " work hard, live high, and die poor." But we 
think it may be said, that litigious clients die poor 
everywhere. Even success in a doubtful cause, like a 
prize in a lottery, invites to new chances, and often 
ends in ruin. 

7. Lord Denman, upon the trial of the Queen, intro- 
duced a Greek quotation, said to have been furnished 
by Dr. Parr, which gave offence to George IV., and, 
as was believed, stood in the way of his lordship's 



ANECDOTES AND WIT. 337 

judicial advancement. He applied to Lord Lyndhurst 
to explain this to tlie king, and to satisfy him that no 
offence was designed. Lyndhurst promised to do so ; 
hut after waiting six months, acknowledged that he 
had omitted it, as it was a matter of so much deli- 
cacy. Denman then applied to WelUngton, who boldly 
said, "that the counsel had done no more than his 
duty, and that he would so represent it to his ma- 
jesty." This was done ; and Denman, shortly after, 
was appointed Chief Justice of the Court of King's 
Bench. (1832). 

8. B used to say, "that of all the prosecuting 

deputy attorneys general that he ever encountered, 

D was the most dangerous, as he always contrived 

to get from the jury a conviction when he asked it. 
And his way was this. If an important and doubt- 
ful case was approaching, he would contrive to thrust 
in before it, some trifling misdemeanor — such as an 
assault and battery, or an indictment for malicious 
mischief. He would introduce the evidence, and then 
abandon the case, with a show of great mercy, say- 
ing, ' This is a small matter, it may have resulted 
from ignorance or accident on the part of the defendant. 
He is a young man, and we must make some allowance 
for his indiscretion,' etc., etc. The defendant is, of 
course, acquitted. Then the important case is called, 
and, with not half so much to support it, the same pro- 
secutor would tell the same jury that the prisoner 



338 THE FORUM. 

deserved to be convicted — drawing upon his prior 
mercy to support his present severity. The jury deem- 
ing him a most liberal man, takes him at his word, 
and almost without evidence, the defendant is con- 
victed." 

9. It is recorded that Sergeant Maynard had such a 
relish for the old year-books, that he carried one in 
his coach to divert his time in travel — and said he pre- 

erred it to a comedy. The late Judge Kennedy, of the 
Supreme Court, who was the most enthusiastic lover of 
the law we ever knew, used to say that his greatest 
amusement consisted in reading the law; and, indeed, 
he seemed to take almost equal pleasure in writing his 
legal opinions, in some of which (Reed v. Patterson, for 
instance,) he certainly combined the attraction of law 
and romance. 

10. Some twenty years ago, when the old system of 
bail below and bail above prevailed, Mr. B , suppos- 
ing the defendant in a cause, to be a gentleman, induced a 
friend to become bail for Ms appearance in the sum of 
two thousand dollars. Immediately after this, the de- 
fendant departed for Jamaica, and left his bail in a 
very awkward position. It so happened, however, that 
the plaintiff's counsel filed his narr, and took out a 
rule of reference (instead of suing out the bail-bond,) by 
which the bail was discharged, and the debt lost. 
Under the present practice, this difficulty is entirely 
removed. 



ANECDOTES AND WIT. 339 

11. In a suit brought by Myers Fisher, a lawyer of 
note, against a person by the name of Buncom, in Ches- 
ter court, for slander, in the year 1774, the defamation 
having been clearly made out, Mr. M'Kean called some 
scores of witnesses, not to deny the slander, but to 
show that his client was such a notorious liar that no 
man in the county believed any thing he said, and 
that therefore no damages could possibly have been 
sustained by the plaintiff. And so- the jury found I 

12. It has been suggested that the terse and pungent 
character of the speeches in Athens was attributable 
to the Clepsydra, by which orators were governed in 
their speeches. We have a severer rule with us. 
With the ancients, they stopped the clock while the 
documents were read ; whereas, with us, the documents 
and aU are taken into account. 

13. The suggestion of the origin of terseness is not a 
bad one. The telegraph, which was not discovered in 
their time, and which requires payment for every word, 
will also, no doubt, exercise some influence upon ver- 
bosity, if it should not be counterbalanced by the re- 
cent reduction of postage. 

14. ^^ Suit the Action to the WordT — This instruc- 
tion was never more fully carried out than by the 
late George W B . He was an exceeding- 
ly eloquent man, and of great wit and acuteness. 
But in argument, if he spoke of a pocket, he thrust his 



3^Q THE FORUM. 

hand into his pocket; if he spoke of a key, he would 
rummage his pockets for a full minute until he found 
a key ; and if, in short, he spoke of any thing within 
his reach, he would be almost certain to lay his hand 
upon it. 

15. Many years ago, when Mr. James A. Bayard was 
appointed by C. J. Johns, to defend a person charged 
with murder, after the case had been submitted, the 
learned judge decided or charged, that the facts and 
the law established the charge of murder beyond all 
reasonable doubt — and either the prisoner was guilty, 
or he (the judge) was. 

16. Mr. Broom, a gentleman of the bar, who weighed 
nearly four hundred pounds, and of great corpulency, 
applied to the Court for the postponement of a cause, 
alleging as the reason, an acute pain in the small of 
his back. "Well," said his adversary, "upon any 
plausible ground I should like to accommodate Mr. 
Broom — and the case may therefore be continued at 
once, if he will tell us simply where the small of his 
hacJc isJ" 

17. A gentleman died, leaving a considerable estate, 
and four daughters, among whom it was to be divided. 
The division of the personal estate proceeded very 
amicably, until they came to a favorite parrot — all 
claimed it, and none would give it u^. It became at last 
a subject of bitter controversy, very much to the annoy- 



ANECDOTES AND WIT. 341^ 

ance of the excellent counsel. They would not allow 
it to be sold, and taken by the highest bidder. They 
would not cast lots for it. They would not leave the 
question to any umpire. At length Mr. C di- 
rected them to bring the bird to him, and he would 
settle the unnatural dispute by wringing off its neck. 

18. Mr. R tried a criminal case — and lost it. He 

moved for a new trial, on the ground of insanity of the 
prisoner. " Your motion is of no use," said the Court. 
" Where is the testimony upon which you rely ?" 

" Here it is," said R , turning to Mr. O'N , " he 

knows aU about it." " I T said O'N . " I never 

saw the man." " Didn't you tell me he was deranged ?" 
" Yes," said O'N . " When you told me he had em- 
ployed you, I did say he must be deranged. I think 
the result has shown it." 

19. O'Rourke was called to prove insanity in a 

child. "State, Mr. O'R ," said Judge KeUy, 

" what expressions you have known used by the child, 
indicating an unsound mind ?" " Expressions, may it 
please your honor ?" " Yes, expressions — what did 
you hear her say ?" " I have heard her use expres- 
sions, may it please your honor, which I never heard 
from anybody who was a thousand years old." 

20. " What toasts did you drink at the meeting at 
Adelphi Hall ?" said a lawyer to a witness. " Why, we 
drank General Pierce and General Washington." " You 



g42 '^^^ FORUM. 

drank Pierce first ?" " Certainly we did, because he 
was alive." "And upon the prmciple, I suppose, that 
a living ass was better than a dead lion." 

21. A young mechanic called upon counsel to obtain 
a divorce. The ground was, that his wife wished him to 
wear a white cravat instead of a colored one, "which," 
said he, "I cant do; and she is perpetually worrying 
me." " Does your wife refuse to wash for you ?" said the 
counsel?" " 0, no," said the client, "she is perfectly 
willing." " Well, then," said the lawyer, " my advice 
is, that if she desires it, you should put on six white 
neckcloths a-day." 

22. " What do you take for your cold ?" said a lady 
to Mr. C . " Four pocket-handkerchiefs a-day, ma- 
dam," was the prompt answer. 

23. Mr. M , in the midst of the trial of a case of 

some moment, before Judge Rush, found that one of 
the witnesses had absented himself. He appealed to 
Judge Rush for delay, suggesting that the witness had 
probably left the court-room upon some call of nature. 
" Go on with your case, sir," said the judge, " and we 
shall shortly see whether nature will call him back 
again — our business at present is with justice." 

24. At a bar supper, a gentleman, turning to WiUiam 
Rawle, Junior, asked whether he had read Mr. Brown's 
tragedy of Sertorius. " Certainly," said Mr. Rawle, 
facetiously, "I have waded through it." " Waded!" 



ANECDOTES AND WIT. . 343 

said Mr. B., who was present, "you must surely have 
been over your Jiead!' 

25. A gentleman of considerable note, who was 
addressing a jury, and who indulged freely in chew- 
ing tobacco, in spitting deposited some of the saliva 

upon his neck-cloth. "Certainly," said Mr. W , 

"whatever may be that person's pretensions, he cannot 
expect to rate as a gentleman." 

26. This same Mr. W , in rising from his chair 

suddenly, nearly tore off the skirt of his coat. "Now," 
said he, turning to a friend, " I surely ought not to 
complain of poverty, as I carry my rents with me." 
" Yes," repUed his friend, " that is true, but remember 
they are all in a rear, (arrear) . 

27. "Are you going to Mr. N 's fancy ball to-' 

night," said one member of the bar to another. " Cer- 
tainly," was the answer. " In what character ?" said 
the first. " In my own character — ^that of a gentleman. 
What will be youi's ?" " I shall go as Charles the 
Second," rejoined the first speaker. " You had better," 

said B , who was standing by, " go as Charles the 

First, and then you will require no head" 

28. A lawyer who had given himself up to inebriety, 
but who frequently professed to have reformed, came 

into court one day, and said to C , " Congratulate 

me, my dear su\ I have resolved to return to the bar." 
" Which bar f was the answer. 



o 



;44 THE FORUM. 



29. Mr. D , addressing himself to B , ob- 
served, " You have written a play, and presented it to 
your friends, beautifully bound in cloth ; but as you 
are a lawyer, why did you not cause it to be bound in 
calf?" "It was out of regard to your skin," was the 
reply. 

30. " Give Mr. I m a seat," said the judge, address- 
ing the crier, at a time when the court room was full, and 
many of the bar were standing. " Thank your honor, 

I have a seat," replied Mr. I m, " but I have no 

chair to put it upon." 

31. Mr. R , who was of an old and aristocratic 

family, turnmg to a gentleman whose family was but 
httle known, said to him, " Is this your family coat of 

,arms cut upon your seal T " No, sir," was the reply, 
"it is my own. Let me see yours!' 

32. At a bar dinner, Mr. Sam Ewing, a lawyer and 
a great punster, was called upon for a song, and while 
hesitating. Judge Hopkinson observed, that at the best 
it would be no great matter, as it would be but Sam 
(psalm) singing. " Well," rephed Ewing, " even that 
would be better than Mm (hymn) singing." 

33. "I have a most contemptible opinion of you," said 
one lawyer to another. "To be sure you have," was 
the reply, "^om can have no other." 

34. "You look sad this morning," said B to 

A . " It must be the reflection of your melancholy 



ANECDOTES AND WIT. 345 

face," replied the latter. " Poor fellow," rejoined B , 

"it is, I fear, the only reflection you have ever been 
blessed with." 

35. In the trial of the State of JSfeiv York v. Frost, 
for manslaughter, arising out of alleged malpractice 
as a physician, the defendant introduced some forty 
or fifty patients as witnesses to his general skill. On 
the part of the State, all the medical faculty testified. 

''Now," said Mr. B , who w^as concerned for the 

defence, " we have offered you the ocular proof of forty 
living patients. The State has produced forty doctors, 
but not one patient. Where, pray, are tJieir imtients ? 
They are among the missing, and before they can find 
them, the?/ must dig for tliemr 

36. In the same case, Mr. B was opposed by two 

lawyers, one named Phoenix, and the other Griffin. 
"Before I have done with these birds of fabulous 
origin," said he, " I shall endeavor to pluck the plumage 
of the one, and cut the talons of the other." 

37. In a very interesting case of Parker and his 
wife and three children, who were claimed as slaves, 
before the court at Mount Holly, New Jersey, Mr. 

B , after the investigation had proceeded some four 

or five days, and the claimants were about to close their 
evidence, upon looking for a deed of manumission, upon 
which he chiefly relied for the defence, found that it 
was not so authenticated as to be competent evidence. 

VOL. II. — 23 



346 THE FORUM. 

It was on Saturday evemng. He mentioned the diffi- 
culty to the late Mr. Shipley, who was always the 
faithful and indefatigable friend of freedom, and re- 
quested him to set off at once for Dover, a distance of 
more than one hundred miles, in order that the docu- 
ment might be authenticated. " Well, but what is to 
become of the case ?" said Sliipley. " The evidence for 
the plaintiff will close in an hour, and without this 
paper you will have no defence." "Leave that to me," 
said the counsel, " the paper is of no use in its present 
condition. Be back by Monday morning, if possible, 
but let no one know your object." Mr Shipley set off 
at once, and Mr. B immediately started an objec- 
tion to a point of evidence, and continued the argument 
until the court adjourned; and on Monday morning 
Mr. Shipley arrived with the document complete." 

38. " Are you a relation of Peter A. Browne ?" said a 
gentleman to David Paul Brown. "Not at all," said 
the person addressed. "His name has an e final." 
" Well, what is the difference ?" " Why, the difference 
is that between a boot and a bootee." 

39. The late Mr. Barton rose to address the court, 
after one of the counsel on the same side had spoken. 
"We cannot," said the judge, "hear two counsel, except 
in a capital case." " I am sure, your honor," was the 
reply, " this is a capital case." 

40- "My son is admitted to practice. What course 



A!^ECDOTES ANB WIT. 34.7; 

would you advise him to pursue, in order to success T' 
^said Mr. C— to a lawyer. " He is a scholar and a 
gentleman, and all that he will requke is composure." 
" Yes, but how is he to acquire that ?" "As Peter the 
Great learned to conquer, by being buffeted and 
beaten," was the reply. 

41. "A gentleman nat blessed with the sweetest 
breath, being sent for by the court, entered into the 
court room in great haste, and observed to Mr. I — ^m, 
"I have lost my breath m running up stairs." " I am 
glad of it," said Mr. I — -m. "I hope you will find a 
better one." 

42. "Upon what principle is it, that you ask the 
schoolmaster to be discharged from sitting upon the 
jury ?" asked Judge Glrier, in Hanways case. " Upon 
the familiar doctrine of the day," said the counsel, 
"that the schoolmaster should be abroadr 

43. Upon the removal of Judge Tilghman from his 
house in Chestnut street, the building was immediately 
torn down, preparatory to the erection af the arcade. 
"WhUe the mechanics were engaged in taking out the 
windows, a gentleman said to Judge Hopkinson, who 
was passing at the time: "Why, they are actually 
gutting the building." "Yes," .said the Judge, "you 
may well say gutting ; for the liver went out yesterday, 
and they are taking out the lights (lights) to-day."" 

44. "Is the plaintiff in this case your son?" said a 



348 THE FORUM. 

judge, turning to an Israelite, who was under examina- 
tion as a witness. "No, sir," said the Jew, "he is my 
son-in-law." " Why," said the judge, " he says he is 
the son of your wife ; how is it, then, that he is your 
son-in-law ?" " Because," replied the witness, " he was 
born eleven months after my absence from my wife. 
Now, although I deny his paternit?/, he is still my son 

IN LAW." 

45. M. Marinot, a well-known French cook, being 
examined before Judge Peters, and his examination 
being prolonged beyond his expectation, anxiously 
exclaimed : " I have a pheasant at the fire, and it will 
be burnt." "Let him go," said the judge to the 
counsel : " in law, you know, damage feasant is not 
allowable." 

46. Mr. B was examined in the case of Cres- 

son, for the purpose of proving that, by the peculiarity 
of the hair, he could distinguish an insane person from 
one that was sane. Having finished his testimony, he 
turned to the opposite counsel, and asked if there were 
.any questions. "None," was the reply; "but I beg 
leave to express my thanks for the first practical 
explanation I have ever heard of the term hair-hrainedr 

47. Two members of the bar, somewhat tinctured 
with infidelity, expressed themselves astonished that 
the doctrine of Christianity should be tolerated in this 
enlightened age. "Is it not remarkable," said B , 



ANECDOTES AND WIT. 349 

who was standing by, addressing a friend, " that men 
like these, who could never be saved by their works, 
should deny the authority of a Redeemer ?" 

48. "I shall handle your witnesses without gloves," 

said Mr. A to Mr. B . " That you may do 

with safety," rej)lied the latter; "but it is more than I 
would venture to do with yours." 

49. "My client," said Mr. I — m, "has, in this case, 
been chased through every street in the city." "I 

doubt," said Mr. B , " whether she has been chaste, 

in ani/ street in the city. 

50. Upon a member of the bar requesting that a 
jury, who had convicted his client, should be polled, a 
barber, who happened to be the foreman, declared that 
it was a personal insult that he would not submit to. 

51. Mr. Levy applied to the court for a rule to show 
cause why a new trial should not be granted. His 
application was in these words : " I move your honors 
for this rule, on the ground that John Hunt was ad- 
mitted as a witness for the gaining party. I suppose 
your honors know John Hunt — everybody knows John 
Hunt." The rule was allowed. 

52. Upon one occasion, the venerable William Rawle 
was offered as a witness. The necessity for an oath 
was dispensed with, and after the examination by the 
plaintiff's counsel, the court asked Mr. Levy if he 
had any questions to ask ?" " No, sir," said Levy, " I 



350 THE FORUM. 

haA^e no doubt he will swear and stick to all he has 
said." 

53. Mr. Pinckney was very fastidious in his orthoepy 
and choice of words. It was he who introduced 
at Washington the pronunciation of U&n, for lem, which 
involved Mr. Peters, who was a great imitator of Mr. 
Pinckney, in the following absurdity : " If," said he, 
" the doctrine of the opposite counsel be correct, his lion 
(lien) wiU eat up the entire house — bricks, mortar, and 
aU." 

54. The late Judge Pettit, while District Attorney, 
was prosecuting a criminal case of great importance, in 
which he introduced an accomphce as a witness. In the 
course of his argument, while he admitted that there 
might be some objection to the witness, he pledged him- 
self still to show that he was right in the main. " But," 

said Mr. B , who was engaged for the defence, 

" that will not be sufficient. You must show that he 
is right in the tail (tale), too." 

55. In the case of the United States v. Harding, in 
in which Mr. Rush and Mr. Pettit were engaged for the 
prosecution, Mr. 0. Hopkinson, in opening his defence 
to the jury, said that, " although the case came in with 
a Rush, it at best was but a Petit affair." 

56. "How did you like my opinion this morning, in 
the case of The Nereid f asked Judge Washington of 
Mr. Pinckney. "It was an able opinion," said the 



ANECDOTES AND WIT. 35I 

latter, " but you used one word that was not English — 
.jeopardize. Jeopard, is the word." 

57. In the case of WynJcoop v. Pennsylvania Medical 
College, Mr. Phillips, the defendants' counsel, stated 
that his clients were distinguished lights of the medical 
profession. " I don't doubt it," was the reply ; " but 
I desire to snuff those lights, that they may burn 
brighter in future." 

58. A very dashing gentleman entered Mr. R 's 

office, dressed in the first style, and with hair powdered 

and curled. "When passing out, Mr. R observed : 

" I thought he bore with him all the perfumes of Ara- 
bia, but they proved to be those of Jamaica." 

59. A client said to his counsel, after the judge had 
charged : " Well, we may go home now ; for the case 
rests entirely on the conscience of the jury." " On 
their stomachs, you mean," was the reply. " Didn't 
you see them filling their pockets with gingerbread, as 
they went to their room. Depend upon it, the man 
who has laid in the largest stock will rule the verdict.'' 

60. A German jury, in a case of fornication and bas- 
tardy, brought in a verdict of manslaughter. 

61. Judge P , upon the trial of a cause, had some 

knotty points of- evidence presented to him — one of the 
counsel strenuously insisting that the testimony was 
admissible, and the other, that it was not. Many books 
were cited on both sides. At last the Judge, losing 



352 THE FORUM. 

his temper, exclaimed, " How is this matter to be de- 
cided? you say one thing, and your opponent says 
another ; and your authorities are about equally contra- 
dictory. Why, Mr. P , do you vex the Couii with 

these knotty questions?" "1 thought," replied Mr. 

P , in a very unsophisticated way, " that courts 

were appointed to decide knotty questions." 

62. An irritable and obstinate judge gave great 

offence to Mr. H , by refusing attention to his 

argument, upon which, the lawyer turning to a friend, 
observed, "That judge has every quahty of a jack- 
ass — except patience." 

63. " What is that you have under your cravat ?" said 

B to I , (the latter being rather slovenly.) 

" My shirt, to be sure," said I . " I know it is 

youi' shkt" responded B , " but which end of it ?" 

64. A son of Judge Peters having a difference with the 
farmer on his father's place, received a severe blow, 
inflicted with a jug by the farmer. The next day, 
while at a family dinner, a note was handed to the 
Judge, bearing the superscription, "Jug Peters ;" upon 
which, he immediately handed it to liis son, stating, 
that it certainly must have been intended for km. 

65. A Ykginia lawyer once objected to an expres- 
sion of the Act of Assembly of Pennsylvania, that the 
State-house yard should be "surrounded by a brick 
wall, and remain an open inclosure forever." "But," 



ANECDOTES AND WIT. 353 

said Judge Breckenridge, who was present, "I put him 
down by that Act of the Legislature of Virginia, which 
is entitled, ^ A Supplement to an Act, entitled an Act 
to amend an Act makmg it penal to alter the marh of 
an unmarked hog.' " 

66. A lawyer, of more practice than classical learning, 
was expounding a statute, when he was interrupted by 
the Judge, who said: "Mr. M , you ought to under- 
stand that law, for you were in the Legislature, and 
assisted in its passage." To which the lawyer rephed, 
" No, may it please your honor, I never gave my veto 
for the law, but was unanimous against it." 

67. In a case in Admiralty, before Judge Peters, the 
chief complaint of the men against the captain was, 
that the bread furnished to the sailors was sour and 
musty, and not fit to eat. A biscuit was brought into 
court and handed to the Judge, as a sample of the 
fare. After the evidence was finished, the counsel 
was proceeding to address himself to the Court, when, 
upon inquiring for the biscuit, he found that the Judge 
had eaten it. That, of course, decided the case. 

68. Upon a reception of the Marquis Lafayette in 
Philadelphia, during his last visit to this country, 
Col. Forrest, one of the Revolutionary officers, upon 
being presented, burst into tears. Upon which. Judge 
Peters, who was standing at the side of the Marquis, 
dryly observed : " Why, Tom, I took you for a Forest 
tree, but you turn out to be a weeping willow." 



354 THE FORUM. 

69. Mr. B , arguing an important case in the 

Oyer and Terminer, was, in the midst of his speech, 
astonished to find one of the Associates (Judge Morton,) 
fast asleep. The counsel, raising his voice, and striking 
his hand with violence upon the desk, roused the 
Judge from his slumbers, and then publicly apologized 
for having disturbed his rest. "I should beg your 
pardon," said the Judge, " but really your voice is so 
sweet, it always lulls me to repose." 

70. A person of gigantic proportions was called to 
the witness stand, and upon cross-examination, Mr. 

B asked, " What is your business ?" " That is 

none of your business," said the witness. Being told 
by the Court that he must answer, he turned round 
to the lawyer, and said : "Well, sir, I am a baker, and 
what have you to say to that ?" " Why," said Mr. 

B , " only this ; that although you are the largest, 

you are far from being the led bred man in town. 

71. A lawyer engaged in a case before Judge Peters, 
tormented a witness so much with questions, that the 
poor fellow at last cried out for water. " There," said 
the Judge, " I thought you would pump him dry." 

72. A sheriff makes the following return of the ser- 
vice of a writ : " The deponent saith, that he knocked 
three times at the door of defendant, but could not 
obtain admission, whereupon this deponent was pro- 
ceeding to knock the fourth time, when the defendant 



ANECDOTES AND WIT. 355 

pointing a musket or blunderbuss at the deponent, 
■loaded with balls or slugs, as this deponent believes, 
said, that if said deponent did not instantly retire, he 
would send his (the deponent's,) soul to hell; which 
this deponent believes he would have done, had not 
this deponent precipitately escaped." 

73. Judge B , of the District Court, came hur- 
riedly upon the bench, but unfortunately a quarter of 
an hour after the appointed time. The jury and par- 
ties were all in waiting. " I beg your pardon, gentle- 
men," said the Judge, " for being so late, and I would 
fine myself, but that I have a good excuse — I have 
been unwell this morning, and besides, gentlemen, the 
town clock is out of order." " That is the clock," said 

Mr. B , "by which you fine the jury?" "Not," 

said the Judge, "since she has been out of order." 
" It is a happy thing, may it please your Honor," re- 
plied Mr. B , "that the clock and the Judge should 

get out of order at the same time — as one excuses the 
other." 

74. The same Judge — who was in the habit of send- 
ing to market by the crier — upon one occasion, being 
about to charge a jury, sent the crier for a shad for his 
family. He then began his charge : " I will dissect 
this case for you, gentlemen of the jury — eviscerate 
it." And turning to the crier, who was just leaving 
the room on his mission, " And see that the guts are 
all taken out !" 



356 THE FORUM. 

75. In a great case of The CommoniveaUh v. Boyer 

et al, for a conspiracy, Mr. B , of Philadelpliia, 

then a very young man, was concerned for the State ; 
Mr. Buchanan, Mr. Irvine, Mr. Biddle, Mr. Baird, and 
others, for the defence. Mr. Buchanan, who closed the 
argument for the defendants, animadverting with some 
severity upon the want of discretion on the part of his 
youthful adversary, and comparing him to the country- 
man to whom Jupiter gave a goose that daily laid a 
golden egg, but who, not content with his gradual in- 
crease of wealth, killed the goose that he might obtain 
all the golden treasure at once, and thereby lost it all. 

" This," said Mr. B , in reply, "is an excellent story; 

it wants but one thing to recommend it to favor — and 
that is, application to the cause. But notwithstanding 
this, the learned counsel may rest assured it has left a 
deep impression upon my mind, and in all time to come, 
such is the power of association, I shall never see a 
goose without thinking of him." 

76. In the year 1810, a young member of the bar, 
just admitted, was spoken to by a gentleman of fortune, 
who asked him how he would like to argue a case in 
the Supreme Court at Washington. This was a tempt- 
ing intimation, and earnestly caught at, as it was cal- 
culated at once to lay the foundation for a professional 
fortune. The young lawyer was employed. The case 
was a very important one — the first case on the list of 
the Court, and the term was to commence in three 



ANECDOTES AND WIT. 357 

days. The young man called upon his colleague, Mr. 
Lewis, who gave him all the information he could — 
furnished the notes of his argument — the paper-book, 
etc. ; and full of trepidation, the young man and his 
learned colleague proceeded to Washington. The 
cause required months of preparation; but as the 
youth had entered upon the task, there was no time, 
however he might regret it, to retract. The counsel op- 
posed were Richard Stockton, D. B. Ogden, and other 
eminent men, who were ready and eager for the con- 
flict. The Court at that time consisted of three judges. 
It so happened that Chief Justice Marshall, on his way 
from Richmond, met with an accident which fractured 
his collar-bone. Judge Johnson, of South Carolina, 
was prevented from attending court by sickness in his 
family. Of course, the Court held no session. The 
case went off for a year, at the expiration of which time 
our young friend w^as abundantly prepared — argued 
his case with signal ability, and with the entire appro- 
val of the Court, as well as of his learned colleague, and 
returned to the city, not only decked out in golden 
opinions, but bearing in his purse a golden fee of one 
hundred guineas — " Audentes fortuna juvat." 

77. Judge Burnside held a court at Doylestown, 
where he was engaged in trying an interesting will 
case. Upon one of the witnesses to the will being 
called, he refused to swear. The judge told the clerk 
to aflirm him. He refused to afiirm. " What, in the 



358 THE FORUM. 

name of Heaven, will you do ?" said the judge. "iVb- 
tJiing,'' said the witness. "What," said the judge, 
" will you, a subscribing witness to the will, refuse to 
prove it, and thus jeopard the will ? I'll commit you 
for contempt." " You may do as you please," was the 
reply, '^but I will not be qualified." "Now, sir," 
said the judge, "I see what you are after; you wish 
to be made a martyr of by being sent to prison, 
but I'll disappoint you. I consider you insane — and 
direct the Prothonotary so to make an entry upon his 
docket. I will then take secondary proof of the exe- 
cution of the win. And let me tell you further, that 
if your wife applies for a commission of lunacy against 
you, I wiU grant it to her at once — for you are as mad 
as a March hare." 

78. One of the pleasantest features in the practice, 
in Delaware, is the agreeable intercourse that prevails 
among the counsel at their mess. We speak of New- 
castle now, and believe that is a fair specimen of the 
professional habits or customs throughout the State of 
Delaware. When I was invited to their mess, after the 

cloth was removed, Mr. B , who presided, called 

for the Digest of the Laws of Delaware, which, like 
most Digests, was in alphabetical order. He then open- 
ed the book, and said, " C," that being the first letter 
on the page which he opened. He then passed the book 
round the table, and each member of the company 
opened it, until at last some unlucky one opened 



ANECDOTES AND WIT. 359 

at Z, when there was a general laugh, and the chair- 
man called upon the unfortunate man to " call in the 
wine" — which was accordingly done. When the stock 
was exhausted, the same ceremony was repeated, and 
thus the table was abundantly supplied. Invited 
guests are never permitted to take a chance in this 
agreeable but hazardous, and somewhat expensive 
lottery, though they share in the prizes. 

79. "Is your client," said Judge R , addressing 

Mr. B , " conscientious against pulling off his hat 

in court?" "Ask him that question yourself," said 

B . " I am neither the keeper of his conscience 

nor his hat." "But," said the judge, "you might ad- 
vise him." "I am here," replied the lawyer, "to advise 
him in his legal defence. His heavenly defence I leave 
to himself, or to you, sii', if you choose to take a part 
in it." 

80. A member of the bar, who was remarkable for 
his irritability, and consequent disposition to quarrel 
with every one who ran counter to his views, upon one 
occasion declared in the presence of a number of his 
legal friends, that he never retired to his bed at night 
without making his peace with all mankind. "No 

doubt," said Mr. B , who was standing by, " you 

are entirely sincere, but although I know you to be a 
very industrious man, I am actually astonished at the 
labor you must go through every night, before you be- 
take yourself to your pillow." 



360 THE FORUM. 

81. "Has it been tliirty years since you and I 
argued the case of McCrea v. DicJcerson f said a law- 
yer to Judge K . " I am afraid it lias been," said 

the Judge. " Your Honor should never be afraid of 
that which is past," was the reply, " only the present 
or the future." 

82. Mr. II having used a term of some reproach 

towards his antagonist in the course of an argument, 
the latter promptly asked him what he meant. "I 

speak," said Mr. R , "in the most offensive sense." 

" That is no answer," was the reply, "for all who know 
you, know that you always speak in an offensive sense." 

83. Governeur Morris, while the surgeons were am- 
putating his leg, observed his servant standing by, 
weeping. " Tom," said Mr. Morris, " why are you crying 
there ? it is rank hypocrisy — you wish to laugh, as in fu- 
ture you'll have but one shoe to clean, instead of two." 

84. Upon the trial of Eldridge, in which the main 

question was that of identity, Mr. B , who was for 

the defendant, in discussing the question, said, that the 
clerk of the bank had stated that the color of the hair 
of the individual who presented the check, resembled 

his own, (the witness's.) " But," said Mr. B , " that 

still affords us no light, inasmuch as you all saw that 
the witness wore a wig ; and although it was his own 
hair by purchase, to speak technically, it was not his 

by nature or descent^ Mr. I , who was one of 

the ablest advocates that the Philadelphia bar ever 



ANECDOTES AND WIT. 36]_ 

produced, when lie came to reply, rebuked his adver- 
sary, for having relied upon his fancy for his facts, and 
told the jury he had sent for the clerk, who would be 
here presently, and who would satisfy the jury that 
he did'nt wear a wig, and thereby remove even this 
flimsy reliance, which the ingenuity of the counsel had 
suggested ; and in which there was more wit than wis- 
dom. Just at that moment the clerk entered. " Come 

forward," said Mr. I , addressing him in a very 

triumphant way, " and tell this jury whether you wear 
a wig." " Certainly I do," said the witness, pulling it 
off, and thereby producing a laugh, and turning the 
tables against the learned advocate. 

85. Mr. Biddle and several other members of the 
Philadelphia bar, were members of the Convention 
which sat in this city about fifteen years ago, to amend 
the Constitution of Pennsylvania. About the time 
that the session of the Convention in Philadelphia 
began, the question was raised in the District Court 
at the calling of the trial list, what should be done 
with cases in which the members of the Convention 
were engaged as counsel, whether they should be con- 
tinued or marked for trial. The members of the Con- 
vention asked that they should be continued — the 
opposing counsel, that they should be put upon the 
trial list. After several had spoken upon the subject, 
Mr. Biddle observed to the Court, that these cases 

VOL. II. — 24 



362 THE FORUM. 

should be continued in compliance with tlie maxim, 
" conventio vincit legemr The cases were continued. 

86. Judge Peters being asked to define a captain of 
a company, said, it was one man commanded by a hun- 
dred others. 

87. He also said, when asked what was meant by 
civil, that it was something that was not military. 
And when inquired of, what was meant by military, 
he replied, " That which is not civil." This has also 
been attributed to Talleyrand. 

88. Upon a lawyer's observing, in the course of his 
speech, that his chent had remained in Ireland a whole 

month an entire stranger, Mr. B observed : " In 

that you must be mistaken, sir, no man ever remained 
a month in Ireland as a stranger." 

89. "What do you understand from the terms, 

" The schoolmaster is abroad ?" said Mr. S . " I 

understand," said the person addressed, "first, that 
instruction is disseminating itself throughout the land ; 
and secondly, that the scholars are at liberty to do 
very much as they please." 

90. "I am astonished at your Honor's decision !" said 
a young lawyer to a judge who had decided against him. 
" This remark cannot be permitted," said the Judge, and 
an apology will be necessary on your part." " Permit 
me," said the senior counsel, " to offer an excuse for 
my young friend — he is new in these matters, and. 



ANECDOTES AND WIT. 353 

when lie has practised as long before your Honor as I 
have, he will be astonished at nothing." 

91. General Knox, who was a corpulent man, was 
engaged in conversation with Tench Coxe, who was 
very slender. They stood at the entrance of a door, 
and impeded the passage of Judge Peters; — who, 
waiting a while, at last pushed between them, exclaim- 
ing, " Here I go, through thick and thin !" 

92. Judge Peters asked the late J. W. Condy for the 
loan of a book ; the latter said, " With pleasure, I will 
send it to you." "That," said the judge, "will be 
truly (Condy-sending) condescending." 

93. The same judge once observed to a Mr. David- 
son, who was a very tall man, " You must have great 
responsibility resting upon you." " How so ?" said 
Davidson. "Because," said the judge, "nine-tenths 
of mankind are compelled to look up to you." 

94. This witty judge, upon seeing a wagon pass, 
which had very thick iron upon the wheels, observed, 
" That it must have come a long journey, for it seemed 
so well tired." A gentleman who was present, who 
did not himself take the joke, still observing the laugh 

' it produced, undertook to repeat it, by stating to a com- 
pany as an admirable matter of the Judge's, " That, on 
seeing a wagon pass with thick iron wheels, he had re- 
marked, ' that it appeared to have travelled far, as it 
was so much fatigued: " He was much surprised at 



364 THE FORUM. 

the very different effect produced by the origmal re- 
mark and its repetition. 

95. "So," said C , "'poor M is dead," 

(speaking of a famous brewer.) " My dear sir/' said 
the person addressed, " what carried him off?" " The 
bier," was the reply. The person who thus obtained 

information, afterwards circulated the story, that M 

had died of drinking too much leer. 

96. Upon the marriage of Miss Willing to Mr. 
Hare, Judge Peters, having been called upon for a 
toast, gave, " The maid that was Willing before she 
had Hare.'' 

97. Governor Pope, of Kentucky, who had lost his 
hand, was one of the counsel engaged for Milton Alex- 
ander, upon a charge of murder. " What do you think 

of the Governor's speech ?" said a friend to Mr. W . 

" Why, I think," said the latter, " that he is an off-hand 
sj)eaker." 

98. Judge Parsons, of Massachusetts, was a great 
sloven — and Harrison Gray Otis was exceedingly 
choice and cleanly in his apparel. " Judge," said Mr. 
Otis, "how often do you change your linen in a 
week ?" " Why, once," said the Judge. " Why, you * 
must be very dirty." " How often do you change T said 
the Judge. " Every day," was the answer. " Then," 
said the Judge, "you must be more dirty, to require a 
change so often." 



ANECDOTES AND WIT. 365 

99. Mr. A. J. Dallas, who was for a long time District- 
'Attorney of the United States, in addressing Judge 
Washington and Judge Peters, used the word Honor, 
instead of Honors, repeatedly, — until, at last, Judge 
Peters, turning to Judge Washington, said, " You must 
not take offence at the manner of the counsel's address. 
The fact is, that Mr. Dallas has been so much accus- 
tomed to address me, when sitting alone, that he for- 
gets that Judge Washington is upon the bench." 

100. Judge Peters, sitting alone to hear a law argu- 
ment, after a very able discussion turned to the coun- 
sel and said, " The Court is divided in opinion." 

101. Judge Peters used to say, "1 am the District 
Judge, — but Judge Washington is the strict judge." 

102. When a gentleman congratulated Judge Peters 
upon Congress having passed an act to increase the 
salaries of the district judges of the United States — " I 
don't know," said the judge, " that it will be of any 
advantage to me. Don't you perceive that the act pro- 
vides for the increase of the salaries of certain district 
judges, whereas it is known that I am a very uncertain 
district judge." 

103. Judge King, who, though an able man, was by 
no means remarkable for choice language, in charging 
the jury, told them " that their verdict must depend 
upon the question, whether the plaintiff or defendant 
had the beneficiary interest ?" " I doubt much," said 



366 



THE FORUM. 



one of the counsel, " whether one of the jury under- 
stands the term beneficiary." " I presume," said the 
judge, " every man understands it who understands 
English." " I understand English," said the counsel, 
" and I do not understand the word in its application to 

this case." " You mean to say," observed Mr. I , 

who was standing near, " that you do not understand 
King's English." 

104. Mr. B mentioned to a friend, that one of the 

highest rough compliments he had ever received, was 
upon one occasion after the elder Mr. Ingersoll and Mr. 
Rawle had spoken. He rose to reply, — when he dis- 
tinctly heard a ship-carpenter on the jury, say to his fel- 
lows, " Now comes Broad- Axe !" " That was a high com- 
pliment, truly," said his friend, " but I recollect one 
that eclipses it. I had been engaged in a cause in New- 
castle against Mr. Bayard and Mr. Clayton, who had the 
best of the case, and of the argument. Finding that the 
case was in great danger — and my laurels too — and 
that I could not save the first, I determined, if pos- 
sible, to preserve the last, and made one of my most 
flourishing and enthusiastic ad capiandiim speeches. 
The effect quite equalled my expectations ; for, as I 
left the court, the avenue was lined on both sides, and 
a burly-looking personage exclaimed, in a stentorian 
voice, '• Make way for the Thunderer.' " 

105. Mr. Sergeant, who had long been at the head of 
the Whig party in Pennsylvania, and, as Sancho Panza 



ANECDOTES AND WIT. 3g7 

said, wherever lie was, " was the head of the table," 
was informed by a younger politician, that a great fes- 
tival was to be given to Daniel Webster. " Why," said 

Mr. S , " I have not heard of it." " No," said the 

informer, "it was thought not politic to invite any who 
were considered party hacks." " Party hacks !" repHed 
Mr. Sergeant, his fine eyes beaming with intelligence, 
"I have carried the party a long time, and I may be 
considered a hack in one sense, but I never took hack 
hirer 

106. A jury was about to be sworn to try a case of 

assumpsit, when Mr. Peters approached Mr. B , 

and said — " My plea is set-off, but I have omitted to 
give you the ten days' notice that the rules require — 
but the omission is nothing among gentlemen." " Cer- 
tainly," said B , " and the instrument upon which I 

have sued is under seal, and the action ought to have 
been debt, but, as you say, ' this is nothmg between 
gentlemen.' " 

107. A case being opened upon a promissory note, 
(the signatm^e of the maker being denied,) Mr. Bra- 
shear was about to prove the note, when he perceived 
there was a witness to the note whom he had not sub- 
poenaed. Mr. Phillips, the opposite counsel, insisted 
upon the regular proof, whereupon Brashear said he must 
submit to a nonsuit. " Never despair," said Brown, " call 
the witness." This was done, and the witness answered. 

108. In a case of life or death, Mr. B , in an 



368 THE FORUM. 

excited appeal to the jury, after describing the sacrifice 
made by a mother to preserve her child, exclaimed, — 
" Oh, Holy Nature, thou dost never plead in vain !" At 
this instant, one of the jury rose, and, in a most cold- 
blooded manner, asked permission to go out. This zvas 
the end of pathos. 

109. Upon another occasion, in Reading, the same 
counsel was making a highly figurative and classical 
speech, when several of the jury appealed to the judge 
ui German to interpret the testimony — when it was 
ascertained that but one man on the jury could speak 
Enoiish. 

110. " This man," said Mr. L , turning to a de- 
fendant, "with the Act of Assembly in one hand, and 
the Bible in the other, wrote this malignant libel." 
"' With his teeth, I suppose," said the adverse counsel. 

111. During the display of the tri-color, upon La- 
fayette's arrival in Philadelphia, a gentleman with a very 
red nose asked Mr. B if he had mounted the tri- 
color. " Yes," was the reply ; " did you ?" " Cer- 
tainly," said the former. " What an extravagant fel- 
low you are," said B , " you should have bought 

the blue and white, and relied upon your nose for 
the red." 

112. A gentleman being found reclining upon a sofa, 
in his office, a friend inquired if he was sick. " no," 
said he, " I am only taking a requiemr 



ANECDOTES AND WIT. 369 

113. "All the judges of the United States foUow 
the Pennsylvania decisions as a beacon," said Mr. 

. " It is no wonder, then," said B , " that 

they are so often wrecked, or run ashore." 

114. The late Judge Rush, who was a man of great 
mental power, of great energy, hut still great simpHcity 
of character, towards the close of his judicial career, 
was put in nomination for sheriff. Upon a visit to the 
Philadelphia Library about this time, we met the Judge 
there, engaged in examining the files of some ancient 
journals, and we inquired what he was hunting for, which 
gave rise to the following brief dialogue : 

Judge. — " I am looking for some early Hterary produc- 
tions of mine, which have been generally ascribed to 
Dr. Franklin. They may be serviceable to me at the 
approaching election for sheriff." 

B . — " But why, at your time of life, will you 

leave the bench, which you have graced so many 
years : 

Judge. — " I am tired of it, Mr. B 5 and although 

President, I cannot but feel degraded and disgusted by 
being overruled at times by my two associates, who 
know nothing of the law, and smoke common cigars." 

B . — "You have lately had a lawyer for an 

associate, Mr. I m ; but, it is true, he did not re- 
main long." 

Judge. — " Only nine days — a mere nine days' won- 
der. I promised myself some relief from his appoint- 



370 THE FOKUM. 

ment. Init lie rather added to my annovance. He 

aftbrded me no aid — he nerer spoke while he was on 
the bench." 

B . — '' I think yon uinst be mistaken in that — 

for I heard him speak once myself, and pretty authori- 
tatively." 

Judge. — ••' You must be iu error, sii'." 

B . — •• Xo. su'. Do you not remember that upon 

one occasion, soon after taking his seat, he turned to 
the tipstaff, and exclahned. ' I\jck those dogs out of 
court.' "" 

Judge. — "' Right, sir — you are right. And don't you 
remember, that I immediately said to the crier — ' Turn 
the dogs out of court 1' la™g the emphasis upon the 
word iii/'u. to express my abhorrence of such in- 
humanity ?" 

11-3. Judge Rush was a credulous man. though of 
the most sterling morahty. "NThile holding a comt, 

some forty years ago. at '\Yestchester. Mr. D . a 

member of the bar. and a great wag, arrived at the 

court about an hour after proceedings had commenced, 
and was called upon for an explanation of his want of 
punctuality. 

••'The facts are these." said he. ••'While on my 
way to coui't_. passing through a neighboring wood, what 
was my astonishment to encounter a creature in the 
form of a man. entii'ely covered with haii\ Imme- 
diately upon seeing me he ran up a tree, and perched 



ANECDOTES AND WIT. 371 

upon its toj>most branch, and there chattered and made 
all sorts of grimaces at nic ; and, in short, so fixed my 
attention, as to drive everything else out of my me- 
mory." 

" Most remarkable," said the judge ; "quite sufficient, 
undoubtedly, to account for your absence — most mar- 
vellous ! No doubt one of the Orang Outang species, 
that has in some unaccountable manner made his way 
into this region." 

The case proceeded. . This was, of course, all a fic- 
tion, framed to impose upon the judge's credulity; and 

Mr. I) having mentioned it to the members of the 

bar, it reached the Judge's ears. " Very well," said the 
Judge, " he has imposed upon himself more than upon 
me. lie has violated the truth, and let him never ven- 
ture to come before me as a witness, for I would not 
believe him on his oath." 

11 G. A sailor having been tried before Judge Wash- 
ington for manslaughter on the high seas, the jury, con- 
trary to the charge, brought in a verdict of guilty. 
Whereupon, the judge said, " I cannot for a moment 
bring myself to believe that the defendant was art or 
part in the transaction. You have, however, found him 
guilty, and I sentence him to a fine of one dollar, and 
imprisonment for one day." 

117. Mr. Hopkins, of Lancaster, Pennsylvania, was 
an able lawyer, but perhaps the most deliberate speaker 
that ever appeared at the American bar. Mr. Talbot, 



372 THE FORUM. 

of Kentucky, on the contrary, was a most rapid and 
hurried speaker. This led Judge Washington, upon 
one occasion, to observe, that he would ask no longer 
lease of life than while Mr. Hopkins was delivering 
one of Mr. Talbot's speeches. 

118. Robert Morris, the Recorder of the city of 
New York, was upon the point of pronouncing sentence 
upon a woman for larceny, prior to which he asked 
what she had to say to mitigate her punishment. Not 
a word was uttered, but her little boy, about ten years 
of age, sprang from her lap, and falling on his knees, 
held up both his hands to the judge. The kind-hearted 
Recorder was overcome by the appeal, and at once dis- 
charged the prisoner. 

119. Hon. Richard Riker was at one time Recorder of 
the City of New York, and upon the invitation of the 
Inspector of the Prison, he was about to visit the jail 
at Blackwell's Island. He complained, however, of 
not being shaved, when he was told he could be shaved 
by a prisoner, who was an excellent barber. After the 
Judge had been lathered, and the razor applied to his 
throat, upon looking up, he found he was in the hands 
of an ill-looking fellow, who, but a week before, he had 
sentenced to seven years imprisonment — when the fol- 
lowing dialogue ensued : — 

Judge. — "What is your name, my friend, and what 
are you here for?" 

Prisoner. — " You ought to know my name, and you 



ANECDOTES AND WIT. 373 

certainly know wliy I am here, as you sentenced me, 
yourself," said the prisoner, scowlingly. 

Judge. — "Well, you look like a clever fellow, and I 
think I shall recommend you to executive clemency 
for pardon." The Judge, by his promise, got safely 
through the operation, hut never kept his promise, 
extorted as it was, by duress 'per minas. 

120. " I don't like your definition of a dog," (the 

male of b — h,) said Mr. B to Judge Bouvier, who 

had just published his Dictionary. "What would you 
suggest, in place of it ?" said the Judge. " Son of a 
b — h," was the answer. 

121. Dr. B , a distinguished clergyman, called 

upon Mr. B , and stated that Mr. B , one of 

the officers of his church, had been robbed of his silver 
during the previous night, by some burglar. " Now, 
sir," said the reverend gentlemen, "what advice would 

you give to me, for Mr. R ." "Well," said B , 

" my advice would be, what you as a minister of the 
gospel, might more appropriately advise. That Mr. 

B should, in future, lay up for himself * treasures 

in heaven, where neither moth nor rust doth corrupt, 
and where thieves do not break through nor steal.' " 

122. A young gui was called up on the judgment- 
day of the Sessions of New York, to answer to an in- 
dictment. She pleaded " guilty." The humane judge 
directed her to reconsider her plea. She repeated it, 



374 THE FORUM. 

saying slie was guilty — that she wished to be impri- 
soned; and emphatically added, "This is the second 
time of my being accused of felony ; the first time I 
was innocent, and was convicted. I served my time 
out — my character was blasted — everybody shunned 
me — the world is nothing to me, and I desire to retire 
to my ceU, and there to hide myself forever." 

123. The late John C. WeUs, who, though a respect- 
able lawyer, was a most tiresome speaker, many years 
ago was engaged in a heavy mercantile case in the 
Circuit Court. The jury was made up of the most 
intelligent merchants — Robert Wain, Sims, and men 
of that sort. Mr. Wells spoke for an entire day, and 
was to resume the next day. In the interval the jury 
complained to everybody of the sufferings to which they 
were condemned, and next morning at the opening of the 
Court the court-room was crowded by merchants, for the 
purpose of seeing a man who could speak two entire 
days. Thus encouraged, Mr. Wells occupied the se- 
cond, and in short, did not finish his speech until the 
close of the third day. But he never had a chance of 
speaking in a mercantile case again. 

124. "Young gentleman," said Judge Rush to Mr. 
M — n, who was defending a case of felony, "there is' 
no such evidence before the jury as that which you 
have quoted from your notes." "I say there is, may it 
please your Honor." "You are mistaken," said the 
Judge. "Grracious heaven," exclaimed the lawyer. 



ANECDOTES AND WIT. 375 

" has it come to this — that a judge shall control coun- 
sel in an important criminal cause !" " Young man," 
interposed the Judge, " The Court does not sit here to 
listen to blasphemy, and if you repeat this, we will 
commit you." 

125. When Mr. Williams was appointed United 
States Judge for the territory of Iowa, he was often 
compelled to hold his court in the open field. In 
criminal cases the prisoner was fastened to a tree — the 
jury seated on the ground, and the Judge placed upon 
the top of a hogshead. On one of these occasions the 
head gave way, and the Judge, in the midst of his 
charge, suddenly disappeared. 

126. The same gentleman, before he reached judi- 
cial dignity, was defending a client in the interior of 
Pennsylvania, against the claim of a quack doctor, 
(who professed every thing and knew nothing,) and 
who had instituted a suit for surgical services, and had 
marked the suit to the use of another, in order to be- 
come a witness. The following was the cross-exami- 
nation : — 

Counsel — " Did you treat the patient according to 
the most approved principles of surgery ?" 

Witness. — " By all means — certainly I did." 

Counsel. — " Did you decapitate him ?" 

Witness. — " Undoubtedly I did — that was a matter 
of course." 



376 THE FORUM. 

Counsel. — " Did you perform tlie Csesarean operation 
upon him ?" 

Witness. — "Why, of course, his condition required 
it, and it was attended with great success." 

Counsel. — " Did you, now Doctor, subject his person 
to an autopsy?" 

Witness. — " Certainly, that was the last remedy 
adopted." 

Counsel. — "Well, then, Doctor, as you performed a 
post mortem operation upon the defendant, and he sur- 
yiA^ed it, I have no n^ore to ask, and if your claim wdll 
survive it, quackery deserves to he immortal." 

127. While Mr. B was speaking at 2 o'clock in 

the morning, in a case of murder, his chents, whom he 

"was defending, sat on each side of him fast asleep. 
Upon his attention being invited to this matter — he 
observed, turning to the jury, " The innocent can 
always sleep — for they are always secure." 

128. A commission was issued to Canton, in a case 
in which a Hong merchant (Houqua), was plaintiff. 
The only cross-interrogatory ran thus : " What have 
you to do with the case ?" Upon the return of the 
commission, the answers of the witness fully supported 
the plaintiff's claim ; but, when he came to the answer 
to the above question, he destroyed all that he had 
previously said, by answering, " I have a great deal to 
do with the case, for I am entitled to one-half of the 



ANECDOTES AND WIT. 377 

amount recovered." Of course, the evidence was re- 
jected, and plaintiff nonsuited. 

129. Judge B was engaged in trying a case 

having relation to a quantity of hay which was claimed 
by both plaintiff and defendant. The defendant's' 
counsel moved, before proceeding to address the jury,, 
for a nonsuit. "Why didn't you make the motion 
before ?" said the Judge. " Because," replied the coun- 
sel, " I thought your Honor might be like Issachar's 
ass, divided between two bundles of hay." 

130. A person when called upon the stand as a wit- 
ness, and examined upon an occurrence of some ten years 
past — stated, truly, no doubt, but to the surprise of 
every one, " that he was thirty years old, but that, in 
cutting down a tree, a few years ago, it fell upon him, 
and so injured his head, that from that moment he lost 
all memory of everything that had previously occurred." 
He was tested in every way, but in no instance did he 
recollect any event antecedent to the accident. 

131. Mr. Moses Levy entered a caveat agamst a wiU, 
for a disinherited son. The party called a score of wit- 
nesses, to show that the father was utterly insane, and 
the case was considered hopeless for the defencej. 
when Mr. Thomas, being called upon to support the 
will, said " he had but one witness," — which excited 
some surprise. However, the witness was called. He 
was a lawyer of the highest respectability, and his 

statement ran thus : " I knew the testator. He called 
VOL. II. — 25 



gyg THE FORCM, 

upon me on the evening of the day on which this will 
bears date, and entered into conversation with me, 
which continued several hours. He talked upon various 
subjects, and with great intelligence, and very much to 
my satisfaction. At last, rising to take his leave, he 
said, 'I ought, Mr. Bayard, to explain my reasons for 
having so long trespassed upon your time. They are 
these : I have this day executed my will, disposing of 
my estate, and disinheriting my son Ralph. Now, he 
is so abandoned in his principles, that I am sure he 
will attempt to set aside my will, probably on the 
ground of insanity ; — what I ask from you is, that, 
should he do so, you will attend court, and express 
your opinion of my sanity.' " 

132. Mr. Duponceau, (afterwards celebrated as a man 
of great learning,) was through life very near-sighted, 
and absent of mind. During the Revolutionary war, at 
the battle of Monmouth, he was found leading on a 
body of the British forces against his own countrymen, 
and never detected the error until he was taken prisoner 
by the very men that he imagined he was commanding. 

133. The same gentleman, at the time of the impeach- 
ment of Judge Chase, at Washington, was on his way 
with a number of his brethren to attend the trial, but, 
instead of waiting for the boat to cross the Gunpowder 
River, he walked directly into the stream, and his life was 
luckily saved, by Mr. E. Tilghman seizing him by the 
collar before he got beyond his depth. 



ANECDOTES AND WIT. 379 

134. Mr. B complained to the judge of the 

Court of , of the postponement of a 



case. The judge, however, continued it, against his 

objection; upon which, Mr. B said, "I think it 

probable this case will never be tried, except in the court 
above." " That is a court," said the judge, " in which 
you may not be permitted to plead." " Very likely. 

Sir," replied Mr. B ; " but you will be compelled to 

plead, and lustily too, if you hope to escape condemna- 
tion." 

135. Blunders of the Press. — In the case of the 

Orange riot, Mr. I , in describing the attack of 

the defendants upon the Hall during a festival, ex- 
claimed : " They approached like a body of living 
caissons, all armed with stones." In printing the speech, 
the compositor made it read, "like a body of living 
capons, all armed with stones." 

136. In the speech of David Paul Brown, at Mount 
Holly, in describing the condition of the defendant, he 
said: "You behold him, abandoned and desolate, wan- 
dering at the hour of midnight along the banks of the 
Delaware, like a hapless ghost upon the Stygian shore" 
— to which the printer adds, " without a resting-place 
for the soles of his feet." 

137. In an argument in the Circuit Court, the coun- 
sel for the prosecution, while speaking, threw himself 
into the most crooked and ungainly positions imagina- 
ble, and finally placed his leg on the table. His ad- 



380 THE FORUM. 

versary expressed his surprise, and asked him what 
was the matter? "I have got the spinal disease," 
said the speaker. " If you will substitute an r for the 
/z, I should understand it — ^you mean spiral disease, I 
should think." 

138. "I heard you," said a gentlemen of the bar to 
another, who had not much business, "as I passed 
your office, apparently delivering a speech in your 
office, while surrounded by your children." " That," 

said B , who was present, " is his only mode of 

trying Ms issues." 

139. In the case of Mrs. C , Mr. L ex- 
claimed : " Unhappy woman, left to buffet with the 
storms of a tempestuous and cruel world, deprived as 
she is, of her husband, who has gone in that bourne in 
which, as a great lawyer once said, no man ever comes 
back from." This is excusable ; as it was once said by 

Mr. P , who was a bright scholar, that a witness who 

had spoken, "deserved, as Slialtsjpeare says, to be 
ilirust into outer darkness." 

140. Upon one occasion, a young man who had lost 
a cause in the Criminal Court, handed in his reasons, 
and moved for a rule to show cause why a new trial 
should not be granted. The judge glanced his eye has- 
tily over the reasons, and throwing them down, told the 
counsel there was nothing in them, and that he would nt 
grant the rule. An elder member of the bar privately 



ANECDOTES AND WIT. 3g]_ 

remonstrated with the judge, and observed to him, 
that the young man appeared to be mortified, and that 
it would, perhaps, have been better to have allowed 
the rule, and heard the argument, if even finally, the 
new trial should not be granted. " But," replied the 
Judge, "the reasons actually amounted to nothing." 
" Suppose it were so," rejoined the counsel, " motions 
of this sort often amount to nothing, as you, yourself, 
know. You were an eminent lawyer before you were 
placed upon the bench, yet, in the case of Early, in 
which your client was convicted of murder, one of the 
reasons assigned by you for a new trial, was, that in 
arguing the case of the defendant, you had put some 
of the jury to sleep, yet the Court entertained your 
motion, and I defy any man to suggest a poorer reason 
than that." The Judge laughed — admitted the truth 
of the statement — and reformed his practice. 

141. An interesting case of a Quadroon, from Nor- 
folk, came on for a hearing upon the claim of her master, 
about fifteen years ago, before Judge Randall. Mr. 
Haley and others represented the claimant, who held 
an official post at Norfolk. Lovey had one child, and 
the claimant was its father. After a full hearing, the 
slavery of the fugitive was established, and the judge 
ordered the slave into the custody of a famous dealer 

in flesh — one D , who was the alleged agent of the 

master. Lovey was what is called a Hkely woman, 
and she was a shrewd and resolute one. On her way 



382 THE FORUM. 

with tlie officer to the South, she curried favor with 
him, stimulated his salaciousness, expressed her delight 
at having been placed in such genteel custody, and 
feigned great gratification at having escaped from the 
abolitionists. D , entirely overcome by her flat- 
tery, " grumbled pity," and when they arrived at "Wil- 
mington, invited her to sup with him. This, however, 
she modestly declined, as being too great an honor, 
but offered to prepare his supper and wait upon him, 
and then take her own humble meal at the second 
table. Blinded by this humility and reverence, he 
consented, and she prepared his supper; but while he 
was enjoying his luxurious repast, she passed out the 
kitchen door, made her way into Chester County, and 
finally, when next heard of, was in Canada. 

There is a sequel to this story worthy of notice. 

D was offered by some philanthropic man of color 

five hundred dollars for the freedom of Lovey and her 
child. He refused it; but when she had escaped, he 
offered to accept the sum. There was no flinching 
on the part of her friends, but the production of the 
woman was required before the payment of the money. 

This could not be complied with. D then offered 

to accept half the money, and to warrant her recovery. 
This was not accepted. Thus his cruelty was utterly 
foiled by his lechery. So it is that most crimes unite 
together, and sometimes defeat each other. 

142. A year or two after this, another case even 



ANECDOTES AND WIT. 



383 



more interesting, was brought before the same judge. 
It was that of a young girl, apparently white, who was 
claimed as a slave. The owner was represented by 

Mr. I and Mr. I. W . There were, of course, 

many to swear to her ownership and her identity. She 
was said to have left Maryland in her infancy, and not 
to have been seen for many years — (she was sixteen). 
On the other side it was testified that her mother, a 
white, was a resident of Philadelphia, who, in dying, 
left her in charge of a highly respectable colored man, 
whose wife adopted her. That by the will of her bene- 
factor she would be entitled to several thousand dollars, 
and that she had been known in this city from her 
childhood, and long before it was pretended that she 
and her mother had escaped from Maryland. After an 
excited and zealous discussion she was discharged. 
Shortly after, her colored friend died, and true to his 
word, left her all his estate. She afterwards married 
respectably, lived comfortably, and died only within 
the last few years. 

We have recently heard from a gentleman of un- 
doubted veracity, a story connected with her release, 
that was not known at the time, or there might have 
been a different result. A hair-brained Irishman, while 
the case was going on, informed the friends of the girl 
that he thought he had seen her many years before, in 
Philadelphia. He was at once called to the stand, and 
he swore roundly and positively that he had seen her, 



384 THE FORUM. 

and gave time, place, and circumstances. After she 
was discharged, he was asked by our informant, why- 
he had been so doubtful at first, and then so positive. 
" Oh," said he, " that is owing altogether to my know- 
ledge of the law. We are told by the law, that in 
doubtful cases we should always acquit ; now I was in 
very great douU about the girl, and therefore I, of 
course, swore fodtively in her favor. That is acquit- 
ting in a doubtful case." 

143. Passing out of my office one morning, a tall, 
herculean person nearly walked over me as he entered, 
with his hat on, and a formidable stick in his hand. 
"What is your pleasure?" was my remark to him. 

" I wish to see Mr. B ." " You do see him — what 

is your will." " If you are the person," said he, " I 
wish to employ you to recover two niggers who have 
escaped from my plantation near Elkton." " You can't 
employ me," was the answer. " Why not ?" " Because 
I am not to be employed." " Well," said my rough 
visitor, " will you refer me to some other gentleman T 
" No gentleman will take the case ; and if he would, I 
would not insult him by referring a case to him, that 
I refuse myself." " Well, give me the name of some 
one who is competent to attend to the business." "No 
one would be competent who would take it." "Well, 
then," said the stranger, " I take leave of you." " As 
Hamlet says, ^ you cannot,' was the reply, ' take from 
me any thing, that I more willingly would part withal.' " 



ANECDOTES AND WIT. 385 

144. " That book of yours on Insolvency," said 
Judge H , to Mr. I , " is not reliable autho- 
rity." " Very likely," said Mr. I , " it contains 

so many of your Honor's opinions." 

145. Mr. , as Attorney General, was replying 

to the argument of two members of the bar, whom 
he designated as "those two men;" one of his opponents 
objected to the roughness of the reference, and said it 
was usual to refer to members of the bar as gentlemen. 

" I am content," said Mr. , " to be called a man." 

" That is very probable," replied the other, " for no one 
who knows you would call you a gentleman." 

146. The same gentleman, in arguing a case, observ- 
ed that he had raised himself by great effort from early 
humble beginnings — from being engaged in grubbing 
by the day, to the situation of Attorney General of the 

State. " That is a doubtful elevation," said Mr. B , 

" for I hold a good grubber to be better than a bad 
Attorney General." 

147. A person by the name of Day was indicted be- 
fore Judge King and Judge Knight for burglary. The 
prisoner's counsel wittily suggested the defence, that 
a burglary could not be committed by Day. He how- 
ever was convicted, and Judge King, in addressing him, 
said to the defendant : " You have been convicted, not- 
withstanding your defence, of burglary. Your defence, 
however, to some extent shall avail you, for though the 



386 THE FORUM. 

crime was committed by Day, you shall be sentenced 
by Knight." Whereupon Judge Knight proceeded to 
sentence him. 

148. Upon one occasion, Mr. Webster was on his 
way to attend to his duties at Washington. He was 
compelled to proceed at night by stage from Baltimore. 
He had no travelling companions, and the driver had a 
sort of felon-look, which produced no inconsiderable 
alarm with the Senator. " I endeavoured to tranquil- 
lize myself," said Mr. Webster, "and had partially suc- 
ceeded, when we reached the woods between Bladens- 
burg and Washington, (a proper scene for murder or 
outrage,) and here, I confess, my courage again deserted 
me. Just then the driver, turning to me, with a gruff 
voice asked my name. I gave it to him. " Where 
are you going ?" said he. The reply was, " to Washing- 
ton. I am a senator." Upon this, the driver seized 
me fervently by the hand, and exclaimed — " How glad 
I am. I have been trembling in my seat for the last 
hour ; for, when I looked at you, I took you to be a 
highwayman." Of course, both parties were relieved. 

149. Mr. Webster used to say, that there was an 
old Revolutionary fire-eater who professed to be much 
attached to him, and who gave as the reason — that "he 
never looked in Webster's face, without its remmding 
him of gunpowder." 

150. Mr. Webster was called upon by an old gen- 
tleman from Nantucket, to undertake a cause for him. 



ANECDOTES AND WIT. 337 

the argument of which was approaching, and his chent 
asked what would be his terms. " Why," said Mr. 
W , " I cannot argue it under one thousand dol- 
lars ; for, although the case is not a heavy one, it will 
require me to hang about the court for a week, and I 
should be as willing to be actually engaged for a week, 
as to lose my time in this way." " Well," said the 
client, " if I give you a thousand dollars, will you argue 
any other case in which you may be employed." 
" Certainly," said the advocate. The bargain was 
closed. The old man, having an eye to business, 
applied to several persons in Nantucket who had cases 
.on the issue list, and made his own terms for Mr. 
Webster's services, and actually received four hundred 
dollars beyond what he had paid, and, beside that, 
gained his own cause gratis !" 

151. Mr. Webster was, generally speaking, indiffer- 
ent, not to say careless of money — it seemed neither 
at rest in his pocket, nor upon his mind. A client 
knowing this, applied to him to argue a case in Wash- 
ington. Mr. Webster was at that time closely engaged 
in examining some authorities in his law books. The 
client laid down a five hundred dollar note, and, after 
stating his case, left the office. Months rolled round — 
the time for his argument came on. He again called 

upon Mr. W , who said he was not able to go to 

Washington, " he had no money, and he had no time." 
" Well, but," said his client, " I gave you five hundred 



388 THE FORUM. 

dollars." Mr. Webster didn't remember it. " Well, 
but," said his client, who had noticed the name of the 
book which Mr. Webster was reading at the last call, 
"you were, at the time, looking over Cooper's Jus- 
tinian." Mr. Webster went to his book-case, and 
there found the identical note, and the chief difficulty 
was at once removed. 

152. On the trial of Mrs. Carson, in 1814, during 
the adjournment, it was necessary to examine some of 
the witnesses at the office of the counsel. The tipstaff 
inquired where the witnesses should be sent. " Why," 

said Mr. L , " send Mrs. De Gorgue and the other 

old witnesses to my young friend, Mr. Ingersoll — send« 
the young women to me." 

We will not venture to designate the name of the 
gentleman from whose speeches the following abstracts 
are taken, but leave it to the bar to discover their 
author. 

153. The case is as plain, as that the Honorable 
George Morton is Associate Judge. 

154. In every well regulated society, laws are to be 
dispensed with, according to their spirit. 

155. Since the establishment of this colony, the 
whole Code is to be construed liberally, and to be con- 
sidered applicable to all cases, which, according to the 
best consideration of the judge, is to be applied to this 
case. 



ANECDOTES AND WIT. 339 

156. The law laid down in Cowen's Report, was law 
in this colony before New York was settled, in the time 
of George I., when the Lord's Act was passed. 

157. The Guardians of the Poor are an excellent 
body — they are excellent guardians against married 
women, whose husbands go astray. 

158. I contend, that the order of the Court is an 
execution. 

159. I don't by no means reflect nor insinuate nothing 
as to the Guardians of the Poor. 

160. To destroy the technical, or mere character of 
the proceeding, until then it don't assume the shape 
of money. 

161. " The moral principles of a husband in deserting 
his wife," as my honorable friend, Mr. Scott says, " are 
destructive of his character as a man." 

162. On this very day, in the Senate of the United 
States, has the motion been made, over and over 
again — I say, let the body be sacred. 

163. The very prmciple which the respectable Judge 
Morton has thrown out in part, that services are to be 
performed by an apprentice, — So it has. 

164. King v. WaJceJield, 13 East, [going to read it,] 
says, "it is not quite a case under the law of nations^ 

165. I won't say that in 13 East, 190, you wiU find 
a case which it won't be contempt to refer to. 

166. (9 Johns. 368.) Let me tell my honorable 



39Q THE FORUM. 

opponent, Mr. Scott, or opponent, to speak more cor- 
rectly. 

167. I am satisfied that the constant examination of 
cases by the judges, which they frequently/ do, will 
satisfy them there is nothing to shake their juris- 
diction. 

168. Those modern empirics, the reporters; I have 
read. none of their books, because I know more than 
there is in them. 

169. The different cases that have passed upon 
amendments, the Court, when they look at them, centre 
down into one fixed, unalterable principle. 

170. Can I express by any implication that I may 
express upon the principle of the act which is the 
foundation of the action. 

171. Mr. Norris's writing is like my own, therefore 
I do not read it, and I have made a transcript of it. 

172. Specimen of a speech hefore Judge HallotveU. — 
" Gentlemen of the jury, cases are to be supported by 
evidence ; evidence is to be given by witnesses ; wit- 
nesses must testify to facts ; facts, to satisfy a jury, 
must be prominent and conclusive." 

173. Mr. Pinckney, whose vanity almost equalled 
his oratory, and Mr. Richard Rush, were engaged in 
a very important case before the Supreme Court of the 
United States. Mr. Samuel Dexter, of Massachusetts, 
was replying to Mr. Rush, when the latter, turning to 



ANECDOTES AND WIT. 39]_ 

Pinckney, said, " That is a very able argument." " Wait 
TILL YOU HEAR ME," was the reply. 

174. Mr. Pinckney, when he returned from his em- 
bassy to England, was appointed Attorney General of 
the United States. He was at that time about fifty 
years of age — and, for a great man, very foppishly 
disposed. In person he was above the common size. 
His hair was dyed of a sort of Tyrian purple. He had 
blue eyes, rather coarse features, and full face. His 
usual apparel in court was a blue surtout coat, buttoned 
up to the throat, with a cravat drawn so tightly as 
apparently to throw the blood into his face, with ruffles 
down almost to his fingers' end, and buff kid gloves. 
The impression of the bar, upon his first appearance, 
was not very favorable. And David B. Ogden, who 
was a strong, but a plain man, is reported to have 
said of him : '^' When I first saw Mr. Pinckney, I con- 
sidered him a small man, but I never considered him 
so after I first heard him. On the subject of national 
law he had no equal, and in eloquence he had cer- 
tainly no superior." 

175. Mr. GrinneU, having brought an action to re- 
cover damages for a severe personal injury suffered by 
his cHent on a voyage from Europe, called upon one of 
the sailors to prove his case. The witness, however, in 
common phrase, blew his case out of water, and made 
out a clear defence. " Will your honor, and my learn- 
ed friend opposed to me," said Mr. G , " allow me, 



392 THE FORUM. 

as a matter of personal vindication, to ask this witness 
one or two questions." Of course, the privilege was 
accorded. "Now," said the counsel, addressing the 
witness, " did you not tell me the very opposite of what 
you have stated here, not an hour ago, in my own office ?" 
"Certainly I did," said |he witness, "but I was not 
sworn, and you had no right to examine me in your 
office." 

176. A monk of St. Bernard, some ten years ago, 
called upon Mr. B with European credentials, in- 
dorsed by the Mayor and Recorder of the city of Phila- 
delphia. The object was to obtain funds for the chari- 
table brotherhood to which he professed to belong. 
B subscribed five or ten dollars, and other sub- 
scriptions were niade, amounting to several hundred 
dollars. The monk was afterwards charged with being 
an impostor, his money was taken from him and de- 
posited with the Mayor, and he was committed to prison. 

B and the other contributors received notice 

of these proceedings, and were requested to take back 

their money. This B refused, stating that he had 

given it upon official authority^ and he would not re- 
claim it. The monk getting to hear of this, engaged 

B to sue the Mayor for the amount in his hands. 

This was accordingly done, and the whole sum recover- 
ed — so that the counsel, ia refusing to receive his 
money back, made ten times as much. "A bird in the 
hand is not always worth two in the bush." 



ANECDOTES AND WIT. 393 

177. Mr. Webster was in the habit of writing and 
re-writing most of the finer passages of his senatorial 
and forensic speeches, and sometimes prepared them, 
in order that they might afterwards be introduced 
when occasion should offer. He was wont to say, that 
the following passage in his speech upon President 
Jackson's protest, in May 1834, had been changed by 
him twelve times, before he reduced it to a shape that 
entirely met his approval. Perhaps it is not surpassed 
for poetical beauty, by any thing that ever fell from 
his eloquent lips. Speaking of resistance by the 
United States of the aggressions of Great Britain, he 
says : " They raised their flag against a power, to 
which, for the purposes of foreign conquest and subju- 
gation, Rome, in the height of her glory, is not to be 
compared. A power which has dotted over the sur- 
face of the whole globe, with her possessions and mili- 
tary posts — whose morning drum-beat following the 
sun, and keeping company with the hours, circles the 
earth daily, with one continuous and unbroken strain 
of the martial airs of England." 

178. Party spirit running high in Portsmouth in 
the days of the embargo, great efforts were made at an 
annual State election to carry the town by both parties. 
The Republicans succeeded in electing thek Moderator, 
Dr. Goddard, a position of potentiality, because he de- 
cided, in case of a challenge, the right to vote. A man's 
vote was offered on the part of Mr. Webster's friends 

VOL. II. — 26 



394 "THE FORUM. 

wliicli the Republican party objected to, and the Mode- 
rator was appealed to for a decision. The Doctor hesi- 
tated j he did not wish to decide against his own party, 
and still he was too conscientious to make intentionally 
a wrong decision. He seemed at a loss what to do. 
" I stand," said he to the meeting, " between two dan- 
gers ; on one side is Scylla, and the other Charybdis, 
and I don't know which to take." " I fear, then," said 
Mr. Webster, rather too loudly, " I fear your Honor 
will take the silli/ side." 

179. Extemporaneous lines, by a lawyer, upon hear- 
ing a highly rhapsodical member of the bar delivering 
a most grandiloquent speech : — 

Sun, moons and stars, in wild confusion run — 
The stars put out tlie moons — the moons the sun. 
Thus GENIUS thrives in Nature's sheer despite, 
Or courts were blinded from excess of light. 

180. "I wish I had your brass," said one lawyer to 
another; "I should thei^ succeed at the bar." "If 
you had half my gold,'' was the reply, "you would 
require no brass.'' 

181. In the case of Harding and five others, in the 
Circuit Court of the United States, charged with mur- 
der on the high seas, the counsel, by agreement, were 

to speak two hours only on a side. Mr. B was 

approaching the conclusion of his argument when the 
clock struck two, his limited hour. He closed in- 



ANECDOTES AND WIT. 395 

stantly, with this remark : " The clock, gentlemen of 
6f the jury, has struck; that settles forever the ques- 
tion of TIME, but the question of eternity remains for 
you — ^your verdict is to the prisoners, the fiat of 

FATE." 

182. "I am entirely composed within," said Mr. 

B to a friend, " and have no annoyance, strictly 

speaking, of my own ; all my agitations are from with- 
out. The world seems changed, and every thing is in 
disorder." " The world is not changed," was the an- 
swer, "yoM are changed — and as you have no troubles 
or cares of your own, you occupy yourself in spying 
into the troubles and cares of those around you. A 
man who is occupied with his own affairs, has no time 
to watch the world." 

183. Judicial opinion upon poetry. — One of the 
most extraordinary manifestations of a want of poeti- 
cal taste, that ever was exhibited by a gentleman of 
learning and of great legal acquirement, was displayed 
by Mr. Recorder Hiker, in the trial of Dr. Frost. The 
Eecorder, in his charge to the jury, observes, that 
"Any one who abridges human life, for a single instant, 
is, in the judgment of the law, guilty of at least man- 
slaughter, as a moment may be of infinite service, in 
regard to the affairs of this hfe, but of how much, 
more, as regards a life to come. I am not often guilty 
of quoting poetry, but a very great man is my autho- 
rity, for what I am about to recite to you. There was 



ggg THE FORUM. 

a gentleman who was a skeptic as regards the immor- 
tality of the soul. He was upon one occasion riding 
out with a pious friend, when his horse threw and 
killed him. His friend took out his pocket-book, and 
at once wrote therein this beautiful verse : — 

" 'Between the stirrup and tlie ground, 
He mercy souglit, and mercy found.' 

" I question whether this couplet is equalled by any 
thing in Homer, or Joel Barlow r 

184. A lawyer, returning to his house, was informed 
by his wife, that the hydrant-pipes were burst, and she 
added, " It really seems like a judgment." " Oh, my 
dear," said he, " the judgment is nothing, what I am 
afraid of is the execution^ 

185. A member of the Philadelphia bar, in large 
practice, stated that he never ate his dinner when 
he expected to speak upon any important case in the 
afternoon, for which he gave the following reasons : 
'' Blood is the life and strength of man. It is the motive 
power in all human actions — it is the guardian of life's 
citadel. If the brain is called into action, the tendency 
of the blood is to the head ; if the digestive functions 
are in requisition, the blood rushes to the stomach. 
If, then, a speech and a dinner are to be digested at 
the same time, the blood owes a divided duty, and the 
result is, that a man becomes either a fool or a dys- 
pepticr 



ANECDOTES AND WIT. 397 

186. A man was indicted before a Recorder of the 
Court for stealing wine, by drinking it out of a bottle 
which was confided to his care. The owner had offered 
to settle the case, if the offender would pay the value of 
the wine — which offer was refused. Upon a habeas 
corpus, the Judge discharged the defendant from cus- 
tody, on the ground that no felony had been commit- 
ted, and then bound over the prosecutor for offering to 
compound a felony. 

187. In visiting the different states and county 
towns, lawyers are sometimes subjected to no incon- 
siderable annoyances. Upon an occasion of this sort, 
Mr. B — — finished his argument in Newcastle upon 
a murder case, at two o'clock in the morning of one of 
the coldest days in the winter of 1852. He returned 
to his hotel, and found his way to his chamber, the 
landlord and his servants having retired. The fire had 
gone out — the glass was broken out of the windows — 
and, upon entering his bed, he found there was no 
covering but a single sheet. He, of course, rose early, 
— and, finding one of the judges in the parlor, the fol- 
lowing dialogue took place : 

B. — " You are a hardy people in Newcastle — being 
able to work all day, and freeze all night." 

Judge H. — "Yes, we work pretty hard — but we 
keep warm beds." - 

B. — " Very ! I slept all night with the mercury at 
zero, under a single linen sheet." 



398 "^^^ FORUM. 

Judge H. — " You amaze me ! I liad a mountain of 
bed-clothes." 

B. — "Judges are not quite so plenty as lawyers, 
and they can't spare them." 

There the matter rested for an hour or two ; but, 
after returning from receiving the verdict, the landlord 

requested to explain to Mr. B ; and he began, by 

saying, " that Mr. B 's chamber had been robbed 

last night." " Robbed !" said B ; " there was 

nothing to take but a single sheet, and any man would 
have had hard work to take that, without taking me." 
"What I mean, is this," said the landlord; "about 
twelve o'clock, a number of passengers arrived in the 
southern stage, and nobody being up but the servants, 
the travellers, finding their rooms cold, rushed into the 
other chambers, and yours among them, and removed 
all the bed-clothing to their own rooms. This must 
account to you for the occurrence of which you may 

well complain." " Yes," said B , " it does account 

to me, but without any advantage — it can never pos- 
sibly happen again, as I go to-day — to return — never." 

188. The following exquisite burlesque, written by 
a member of the bar'^ some thirty years since, is not 
less instructive than witty, and although we have no 
claims to its authorship, we cannot withhold it from 

* William M. Meredith. 



4 
ANECDOTES AND WIT. 399 

our professional brethren and the public. The drama- 
tis personce will easily be recognized. 

DIES JURIDICI. 

Scene 1st. — A court-room in Vandalia — Judges Buzz, Burly, and Pallet 
on the bench. Officers, lawyers, &c., &c. The court having been 
opened by the crier in the usual form : — 

Judge Buzz. — (Knocking on the desk "with the handle of his 
pen-knife.) Grentlemen of the Bar, hand in your motions. Come, 
let us hear from you, gentlemen of the bar ! 

Peter (the crier.) — Silence ! you must n't talk, gentlemen. 

Mr. Modicum. — May it please the Court : I beg leave to move 
for — 

Judge Buzz. — Grive me leave, Mr. Modicum — the Court will 
hear you in good time, Mr. Modicum — stay for a short space. Sir. 
(Judge Buzz whispers with his brother Pallet.) Meanwhile, a 
general conversation commences in the court-room. 

Peter. — Silence ! 

Judge Buzz. — (Rapping on the desk.) In very truth. Gentle- 
men of the Bar, there is conversation which disturbs the Court — 
the Court is disturbed — I have said it. I pray you, let there be 
an end, gentlemen : nay, this must not he ! Prothonotary, hand 
me the motion list. (The prothonotary hands the motion list — 
Judge Buzz whispers with his brother Burly — general conversation 
commences as before. After some time Judge Buzz begins to call 
the motion list.) Hump v. Bump! Mr. Grumble ! Mr. Count. 
Continued ! Peter ! Peter ! Peter ! Where is Peter ? 

Peter. — (Standing up.) Sir ! 

Judge Bihzz. — Come hither, Peter. Ah I "What is your first 
name, Peter? 



400 THE FORUM. 

Peter. — Sir ? My name is Peter Pipkin, Sir. 

Judge Buzz. — Yes — it is so — right. " Peter Pipkin" — it is so, 
indeed. Driesbach v. Smashj^ipes I Mr. Modicum ! Mr. Drift ! 
Con— 

Mr. Drift. — Argument, Sir — we are ready on botli sides. 

Judge Buzz. — Go on, tlien, Mr. Drift. 

3Ir. Gri-pe. — I believe your Honor lias passed the case of Taylor 
V. Cahhage. 

Judge Buzz. — I tliink not, Mr. Gripe. What is the term and 
number ? 

Mr. Gripe. — It is at the very head of the list. Sir ; I have not 
heard it called. - 

Judge Buzz. — It is so, Sir ; I have it here, Mr. Gripe ; it is at 
the very top of the list, and to-day we begin at the bottom, Mr. 
Gripe. It shall be heard in its turn — the Court will hear you, 
Mr. .Gripe, when the case is reached — go on, Mr. Drift. 

Mr. Drift. — May it please the Court : — 

3Ir. Grumhle. — (To the Court.) I have not heard the case of 
Hump V. Bump called, Sir. 

J\idge Buzz. — Mump v. Bump — what is the term and number, 
Mr. Grumble ? 

Mr. Grumhle. — It is at the foot of the list, Sir. 

Judge Buzz. — It is so, Sir ; I have it here, Mr. Grumble ; it is 
at the very bottom of the list ; it has been called and continued, 
Mr. Grumble ; it is a very late motion, Sir — it can wait. 

Mr. Count. — We are very anxious on both sides, to have it dis- 
posed of, Sir. (The three judges confer together.) 

Judge Buzz. — Are you ready, gentlemen, on both sides, in 
Hump V. Bump) ? 

Messrs. Grumhle and Count. — (Speaking together.) Yes, Sir. 



ANECDOTES AND WIT. 401 * 

Mr. Drift. — May it please your Honors, in the case of Driesback 
'V. tSmasJvpipes, I — 

Judge Buzz. — You. hear what is said, Mr. Drift ; I pray you to 
stay for the present, Sir ; you shall be heard : the Court will hear 
you, Sir — sit down, Mr. Drift. The Court will now take up the 
case of Hump v. Bump. 

Mr. Count. — May it please the Court: A judgment was obtained 
in this Court, by Henry Hump against Benjamin Bump, at April 
term, 1828, on which a fi. fa. has now been issued, returnable to 
July term. I have taken a rule to show cause why the execution 
should not be set aside, as having issued irregularly and improvi- 
dently, and shall proceed to lay before the Court the grounds upon 
which the present application is founded. In order that the facts 
of the case may be understood, it will be necessary for me to sub- 
mit to your Honors an analysis of — 

Judge Pallet. — The meaning of analysis, I take to be this : — It 
means when a man takes a thing and divides it into parts — that 
is, proceeds to consider it in a — an — analytical manner — that is, 
you see, he analyzes it. You see, that is the meaning of analysis. 
Now I view it in this light, that an analysis is sometimes very diffi- 
cult to make, for this reason : that when you consider any subject, 
it is but one subject, and the mind considers one subject, (at least 
the minds of most men can consider one subject,) with more fa- 
cility, because it is but ane : but my view is this — that when you 
divide a thing into parts, though you may call them parts, yet they 
are in fact so many different things ; (because, unless they are dif- 
ferent, why do you divide them ?) And then, instead of consider- 
ing one thing, (as the whole was but one thing at first,) why, when 
you have divided that into a number of different things ; then the 
mind is compelled to consider just as many different things as you 
have divided the subject into, which is more difficult: (and I have 
known many men — men of education, too — I have, myself, often 



40^- THE FORUM. 

experienced it, and I dare say others have, though I never saw 
this view taken of it before — become very much confused in con- 
sequence;) besides which, after dividing it, it is of no use until 
you put all the parts together again, (because it is to have a view 
of the whole together,) and this also is sometimes not easy for any 
man : I have found it not easy ; therefore the result of my opinion 
is this — I mean to say, that I shall be very glad to hear an analysis 
for this reason, that it is so very difficult. 

3Ir Count. — May it please your Honors, I shall proceed to state 
the facts, just as they occurred, without any attempt — 

Judge Buzz. — (Knocking on the desk as before.) Hear me ! I 
pray you to listen to me, Mr. Count ; let me break this case for 
you, to save time. I will just break this case for you; then the 
points will present themselves, and you can proceed with the argu- 
ment. Mr, Count listen to me ; you move to set aside this fi. fa., 
alleging that the judgment on which it was issued was fraudulently 
obtained, and that therefore the Court should interfere to stay or 
avoid the execution : the courts have the power to do so, doubtless, 
Sir; nay, this Court has often done so, to prevent injustice. Fraud, 
therefore, in the plaintiif, Henry Hump, is the point in this case ; 
is it not so ? Have I not said it aright, Mr. Count ? In very truth, 
is that not the point of your case ? . . 

Mr. Count. — No, sir : we do not allege fraud in the judgment, 
but are prepared to show that this execution has issued irregularly 
and improperly, which I apprehend will — 

Judge Buzz. — (Knocking as before.) How is this. Sir? Let 
me understand this! You allege no fraud in the judgment! — 
Shall you then say to the Court, that a party holding a valid judg- 
ment shall not have execution ? that he shall not have the process 
of this Court, to recover his debt ? Do you say that, Sir ? You 
should have strong gi'ounds to lay before the Court. Gro on, sir — 
go on, Mr. Count. 



* 



^ ANECDOTES AND WIT. 40g 

Mr. Count. — Why, really, sir — 
' Judge Pallet. — Yes, and another thing — you ought to have proof 
of the facts ; because the statement of counsel alone, is not proof, 
however respectable, for this reason : that suppose counsel on oppo- 
site sides make different statements— equally respectable — or dis- 
agree in their statements, how is the Court to determine ? And 
even the affidavits of the parties are not evidence, on the hearing 
of a rule to show cause. The distinction is this : the affidavit of a 
party is sufficient evidence, on which to grant a rule to show cause ; 
but, when you come to the hearing of the rule, it is not evidence. 
And my view of it is this : that such an affidavit ought not, or the 
Court ought not, to suffer it to be even read, on the hearing of a 
rule to show cause, for two reasons ; because the party is interested, 
and cannot be a witness in his own case ; and besides, the opposite 
party has had no opportunity for cross-examination ; which is a 
very important objection, because a witness may tell a very straight 
story, as long as he is allowed to go on in his own way ; but, when 
you come to question him — to sift him — then you very often destroy 
the effect of the testimony which he has given on his examination- 
in-chief. And that is the practice of this Court, always to require 
depositions on the hearing of the rule, (the distinction is between 
the granting of the rule to show cause, and the hearing of that 
rule,) because, on depositions, the opposite party has an opportu- 
nity of cross-examining ; and, if he does not choose to cross-examine 
when he has the opportunity, why, then, he has no right to com- 
plain ; for he has had an opportunity ; — ^you see ? the Court have 
given him an opportunity, but he did not make use of it. 

Mr. Count. — I have several depositions regularly taken, which 
will establish all the facts on which we rely, and I will now 
read — 

Judge Buzz. — Ah ! you have depositions ? Well — well — stay. 
(The three judges confer.) This case has already occupied more 



404 THE FORUM, ^ 

time than was expected ; — I mean to cast no reflection, Mr. Count^^ 
I beg that I may not be misunderstood. Gentlemen of the bar are 
more intent upon the performance of their duty to their clients^ 
than on saving the time of the Court. Let this suffice. This Court 
is much oppressed with business ; the Court will hear yoii, Mr. 
Count, you shall have justice, Sir. No party shall have cause to 
complain, that he has not received substantial justice at the hands 
of this Court. This Court icill do j\istice hehceen the parties in 
this cause ! Judge Burly is now about to call his trial list for the 
next period ; after that, the Court will dispose of this case, if there 
be time. I have said, if there he time. 

(Judge Burly now calls the trial list. During this time. Judge 
Buzz whispers with his brother Pallet, and then retires quietly. 
The calling of the trial list being over. Judge Buzz is missed from 
the bench.) 

Mr. Grurable. — (To the Court, after a pause.) Will Judge 
Buzz return, sir ? 

Judge Burly. — Humph ! I don't believe he will, to-day. 

Judge Pallet. — Why, I don't think it certain; because, just 
before he went away, he said to me, " Are you going to stay ?" — 
and I said " I was, for this reason ; that, perhaps, there might be 
time, after the trial list was called, to dispose of the case of Hump 
V. Bump." " Well," said he to me, " I am going;" and then he 
went away : that was all he said to me, and he did not tell me 
whether he was coming back again or not. Now, my view of it is, 
that it is veiy uncertain whether he does come back again or not, 
to-day ; because he said nothing about coming back, when he went 
away." 

Judge Burly. — Humph ! Adjourn the Court. 

(The Court is accordingly adjourned, in the usual form.) 



EOMANCE OF THE EOE.UM, 



FACTS AGAINST FICTION. 



CHAPTER XVI. 

THE SUICIDE.: 
'Ajtavta -tavt STiidtta ty ^vaso xaxa. — Menander. 

A SHORT time after my admission to practice, but long 
before that practice commenced, when I had much more 
leisure of every kind than business of any kind, I con- 
cluded to spend a few days with my relatives at Berk- 
ley, New Jersey. I accordingly set off upon my jour- 
ney, and had proceeded a few miles below Camden, 
absorbed in my own meditations, with nothing either 
to attract or interest me, when, suddenly, the shady, 
solitary, and apparently deserted scenes, through which 
I was passing, opened upon a large field, where were 
assembled from five hundred to a thousand people, who 
broke in upon the stillness of the rural scene by occa- 



406 "^SE FORUM. 

sional fits of loud laughter, and otlier boisterous demon- 
strations of mirth and amusement. It mattered but 
little to me, so that I arrived before nightfall at the 
place of my destination, how the intermediate time 
should be occupied, and, influenced by youthful curi- 
osity and the novelty of this circumstance, I proceeded 
at once towards what appeared to be the main point of 
attraction, where I beheld all the athletes of the coun- 
try for miles around engaged in their various sports. 
It seemed that there had been a horse-race in the neigh- 
borhood, which having terminated, as usual, by elating 
most of the winners, and depressing the losers, was 
succeeded by aU sorts of wagers and games, by which 
the spoils of former success might be enhanced, or the 
mortification of former disappointments or losses re- 
paired or diminished. Some were wrestling, others 
jumping, others running, and others pitching quoits. 
But the greater portion of the crowd were surrounding, 
in the most intense anxiety, about a dozen men of the 
largest and most muscular frame, apparently Jersey- 
men, all of whom seemed to be engaged in what is 
called throwing the bar, an athletic sport too well known 
to require any explanation. This, upon drawing near, 
I perceived to be no children's play — the bar, I should 
suppose, weighed from twenty to thii'ty pounds, at 
least — scarcely a competitor among them was less than 
six feet high, and most of them strongly knit, and 
fitted, at all points, for thek herculean task. There 



THE SUICIDE. 407 

was one among them, however, " in form and bearing 
proudly eminent," the decided favorite of the ring, who, 
with but little apparent exertion, though with vast skill, 
easily bore off the prize, and was proclaimed victor by 
loud and repeated acclamations. It was readily per- 
ceived that the conqueror was a Jerseyman, from the 
unreserved delight expressed by almost aU around him, 
and from the general huzza for New Jersey, that made 
the welkin ring. I confess I have always belonged to 
the weakest party, and though half a Jerseyman, my- 
self, I felt mortified that the victors should glory so 
immoderately in their success. The favorite and for- 
tunate competitor was hoisted upon their shoulders, 
and paraded through the field, and wagers, to any 
amount within the limited means of the bettors, were 
offered upon him against any one that could be pro- 
duced ; but so decided had been his superiority, that 
no one could be, for some time found, willing or hardy 
enough to incur the disgrace of what was considered 
an assured defeat. At length, a rough, greasy-looking 
individual, apparently a butcher, made his_way in 
among them, actuated, probably, more by mortifica- 
tion than desire of gain, and inquired whether they 
would bet against any man on the ground? "Yes! 
yes !" was the unanimous answer, and every man's 
hand sympathetically and eagerly drew from his pocket 
the voucher for his sincerity. The butcher and some 
few of his friends, obviously from the sister state of 



408 'f^^ FORUM. 

Pennsylvania, covered the bets, and nothing remained 
but to produce their champion. This was soon done, 
as he had no doubt been previously selected. 

Passing to the skirts of the crowd, while all eyes 
anxiously pursued them, they brought forward a young 
man, who appeared to have been an unconcerned specta- 
tor of the struggle, but who, nevertheless, instantly ac- 
quiesced in the proposition made to him. From his looks 
he might have been about twenty years of age, tall and 
magnificently proportioned, and with short, thick, black 
curly hair, and features altogether Roman. He ad- 
vanced with a step neither " rash nor diffident," and 
took his stand beside his powerful antagonist. It was 
so arranged that they were alternately to throw the 
bar thrice, and it fell to the lot of the stranger to com- 
mence. As I have already said, or intimated, the 
general outHne of his figure indicated great strength, 
and the fine proportions of his limbs were perceptible 
to the slightest glance, notwithstanding he was but in- 
differently if not coarsely clad. Upon rolling up his 
sleeves, preparatory to his effort, he displayed an arm 
which struck all present with mute amazement. It 
was a perfect model of strength and symmetry. No 
artist, in his warmest fancy, ever chiselled or deli- 
neated such an arm as that. He seized the immense 
bar, and comparatively without effort, whirled it a 
single time around his head, and threw it further than 
most men could carry it, but still not beyond the mark 



THE SUICIDE. 4Q9 

wMcli gave victory to his competitor in tlie previous 
struggle. It now became the turn of the Jerseyman 
to throw. He threw, and far excelled himself. The 
air was rent with the applause of his friends. Bets 
were doubled and redoubled upon him, yet still the 
stranger smiled, as though utterly indifferent to the 
result. Even his adherents, as though they knew their 
man, although evidently anxious, betrayed no symp- 
toms of dismay. They threw again, and again the 
Jerseyman was successful. The last and decisive trial 
of strength and skill now arrived. The smile of the 
stranger gave place to an expression of the most deter- 
mined resolution ; the recklessness of his air was gone, 
and " every petty artery in his body swelled with a 
giant's strength." He grasped the bar as if all past 
were sport, and passing it, with the quickness of light- 
ning, around his head, hurled it many, many feet be- 
yond the furthest mark. His antagonist stood appalled ; 
in a moment the whole aspect of things was altered. 
Merriment and grief changed sides. The Jerseyman, 
however, accustomed to triumph, still made his last 
effort, and a prodigious effort it was ; but the charm 
was destroyed, for he was of that number with whom 
effort depends as much upon success, as success upon 
effort : he threw — he threw despairingly — and he lost. 

Gratified, I scarcely know why, by the result, I re- 
sumed my little journey, musing upon the past events, 
and comparing these village heroes, in their limited 

VOL. II. — 27 



410 TS^ FORUM. 

sphere of action, with those thunderbolts of war, who, 
not more influenced by ambition, though acting upon 
a wider field, wield the power of mightiest monarchies, 
and subjugate the world. 

Ten years rolled on — with what various incidents 
and changes, it is partly the design of these hasty pages 
to show — when, one morning, in the latter part of the 
autumn of 1828, after I had become sufficiently known 
to induce some persons, at least, to suppose my pro- 
fessional services might be desirable — when, I say, two 
persons were ushered into my study, and in one of 
them I almost immediately recognized, though I had 
never seen him since, the victor of the bar. He was 
not materially altered, except that his person was 
somewhat fuller and broader ; he had the same air of 
composure, and the same pleasant smile that he was 
wont to have ; and yet the business upon which he 
came was dark and terrible. He revealed it all — but 
in manner, as if he had not the least concern in it, 
and without alleging his innocence, still with all the 
dauntlessness of virtue. He had been charged, together 
with the individual who accompanied him, with passing 
counterfeit notes of the Bank of the United States, and 
bad of five thousand doUars had been exacted and given 
for his standing his trial at the approaching term of the 
Circuit Court, for this heinous and hazardous offence. 

The day of trial came. He was arraigned, and as 
he uttered the words "not guilty," my eye feU upon him 



THE SUICIDE. ^11 

for a moment, and I observed the same fixed, firm, and 
resolved expression of countenance that years before 
he had displayed when summoning, as it were, his 
whole body and soul for the last physical effort which 
I have already described. The jury was impanelled -, 
his trial, and it was an awful one, proceeded, and still 
he remained the same. Day after day, during which 
the protracted investigation contuiued, had no effect 
upon him. He told me, it is true, he would rather 
they had sent a bullet through his heart ; but he said 
this with the same placidity and composure, and in the 
same tone that would characterize most men in ex- 
pressing their preference of one dish to the exclusion 
of another at a festive or social repast. To say, there- 
fore, that I attached but little importance to his decla- 
ration, is to say what will readily be conceived. 

An entire week was occupied by the evidence and 
the discussion of his case, during all of which he never 
lived up to it, but was the same wonderful and un- 
changed being. It avails nothing to say what labor 
and what exertion were bestowed upon his defence ; it 
is his history, not miue, that I am writing. The current 
of the evidence was unquestionably against him, and 
even the law, that was rehed upon mainly in his be- 
half, was considered by the distinguished judges before 
whom he was tried, as incapable of affording him any 
rehef — ^in a word, he was convicted. Several of the 
jury, in pronouncing the awful verdict of guilty, sunk 



^22 THE FORUM. 

into their seats, overcome by their sympathies. They 
were husbands and fathers, and he, as it appeared, 
though never breathed by himself, had a wife and five 
helpless children. I ventured to look at him once more, 
and I saw him again as I had last seen him — unmoved. 



and immovable. " What a piece of work is a man !" 

The marshal approached to take him into custody 
and convey him to the prison ; and I then advanced to 
take my leave of him, and to inquire whether there was 
any further service I could render him. He said he 
desired to see his wife. It was the first time that ten- 
der and endearing name had escaped his lips. Appli- 
cation was accordingly made to the marshal to grant 
him the indulgence, and to accompany him to his dwell- 
ing, but whether it was from fear of his escape, or to 
avoid the painfulness of the scene, certain it is, the 
officer mildly but firmly refused. " Never mind," said 
I to his prisoner, who evinced a momentary air of 
peevishness upon the refusal, " never mind, it would 
be but a sad parting, and can answer no possible pur- 
pose, but to sharpen your mutual afflictions. We will 
endeavor to obtain a new trial, and you can then, it is 
hoped, meet in more favorable circumstances." " But," 
said he, " if I don't see her it will kill her." And his 
voice seemed a little broken as he spoke, yet his face 
was calm, and gave not the slightest denotement of the 
horrible tempest that must have been raging in his 
tortured and heaving breast. " Well," said he, at length, 



THE SUICIDE. 4]^3 

" very well — I have no more to say — but I would rather 
they would put a bullet through me :" and again his 
sinews swelled, but the same determined smile rested 
upon his brow, like a sunbeam gilding a terrific and 
approaching storm. I left him; having traced him 
through all the vicissitudes of grief and calamity, I 
left him still the same. 

On the ensuing morning — for there is something at- 
tractive in this firmness of soul — I visited him at his 
prison. He received me with his accustomed manner, 
without any complaint, any murmuring. He took 
from his pocket some papers, upon which he desired 
me to bring a suit, and to account to his wife for the 
proceeds. " I hope I shall be able to account to you," 
I replied, actuated by a disposition to encourage and 
sustain him. " Very well," said he, " account to me," 
and handed me the documents. I begged him to be 
composed, and I would see him again in the course of 
the morning. " An't I composed ?" he replied, smiling- 
ly ; " do you see any want of composure in me ?" I said 
nothing, but shook his hand and withdrew. In one 
hour he was a dead man. 

Upon going into court, immediately after leaving the 
gaol, for the purpose of moving for a new trial, I met 
a friend of his, who had faithfully watched the course 
of the trial, and who, with horror in his face, told me 
that B had, to use his own language, ripped him- 
self open with a knife directly after I had left him. 



^-^^ THE FORUM. 

Supposing that this was either an error, or that per- 
haps B had inflicted some partial injury upon his 

person, under the idea of exciting the commiseration 
of the Court in his behalf, I bestowed no great atten- 
tion upon it, until shortly afterwards I heard it repeat- 
ed from other quarters, accompanied by details, which 
rendered it a subject of much more serious considera- 
tion. Accompanied by the gentleman who assisted me 
in his defence,* I again betook myself to the prison — 
inquired the fate of the prisoner from the keeper — and 
found — he was no more ! 

After I had left him, as has been described, he de- 
scended into the yard which is attached to the gaol, 
where he borrowed what is generally called a clasp-knife, 
from some one of the many felons there confined, and 
instantly turning around an angle of the building, to 
avoid observation, he plunged it into his body just be- 
low the breast-bone, cutting himself in the direction of 
two sides of a triangle. When first discovered, he 
had inserted knife, hand and all into the gaping wound, 
exclaiming at the same time : " I cannot reach my heart !" 
Before the person who saw him could give the alarm, 
he droAv out his intestines and deliberately cut them 
off, then throwing them in one direction, and the bloody 
knife in another, he walked firmly towards the steps 
by which he had descended, and at the foot of which 

* Samuel Brashears. 



THE SUICIDE. 415 

he fell. He was borne to the apartment of the doctor ; 
all assistance was in vain;- he uttered not a "groan to 
guess at," but declaring his innocence, and requesting 
that his remains might be left to the disposition of his 
friends — expired. 

For the last of these details, I am, of course, in- 
debted to those who were present and witnesses of 
this mournful scene ; what is still to be told, is related 
from my personal knowledge. Upon expressing an 
inclination to see the body, the keeper led the way for 
me and my companion to the chamber of death. Upon 
entering, a truly frightful spectacle was exhibited. 
We passed through a long range of gloomy apartments, 
lined on each side with felons and malefactors of every 
possible description, embodying the idea of hell and 
the fallen angels. All was silent and black and fearful 
as night — not a syllable was uttered, not a smile to be 
seen — every human being seemed awe-struck and con- 
founded. Upon entering the chamber, as I have said, 
by the dim light which was afforded from the heavily 
barred and grated windows, I saw the body stretched 
upon a coarse pallet or mattress, in the centre of the 
room, nearly surrounded by a host of criminals, equip- 
ped in their prison garb. They fell back to allow us 
to advance ; their eyes were all fixed; they stood like 
so many shocking statues — not a tear was shed nor 
breath drawn. They looked as if the sources of their 
grief were exhausted with those of virtue. Their eyes 



416 



THE FORUM. 



glared while they rested on the remains of the de- 
ceased. One of them, then apj)roaching the covering 
of the corpse with a motionless and solemn step, with- 
drew it from the body — and we saw all that remained 
of one of the most powerful and extraordinary men 
that has lived in the tide of time j a man who might 
have stood by Csesar ! 

I shall never forget the effect of that moment. It 
was a scene fitted for the pencil of Angelo. The 
body was entirely exposed ; the arms folded across 
the ample breast j the frame and limbs huge, but of the 
most exact symmetry, and the face exhibiting the same 
fixed smile, which had been displayed in life, and 
which particularly became the marble features of death. 
The partial rays of light admitted into the room, centred 
all upon him ; and there was so much beauty — so much 
serenity — so great a contrast between him and all about 
him, that, instead of inspiring horror, it overcame me 
with admiration. They may talk as they will of their 
Socrates and their Catos, who, in the decline of life, 
antedated their doom, in all human probability, but a 
few months — men in whom the vital principle was 
nearly extinct — and whose feelings were enfeebled and 
obtunded. Here was a man with aU the vigor and energy 
of youth about him, with no fame, no immortality to spur 
him on — who never dreamt of commemoration on the 
historic page — and who knew nothing of the precepts 
of philosophy; and yet who, nevertheless, showed 



LUCRETIA CHAPMAN. 4^7 

that the love of glory is not a more powerful incentive 
to human courage, than a sense or fear of shame. 

Thus ends the cause of poor B . I omitted, 

however, to mention that the crime of passing counter- 
feit notes, with which he was charged, was alleged to 
have been committed at a horse-race in Delaware 
County, and that a portion of his defence consisted in 
his allegation that the money was received by him as 
stakes, and put down without knowledge of its spurious 
character. At a horse-race ! It was there I first be- 
held this unfortunate man. It was there, in all human 
probability, his career of vice commenced — and it was 
there, alas ! it was consummated. Such is the frailty of 
mankind, that our very accomplishments are frequently 
our lures to destruction. To excel in any thing be- 
comes a subject of admkation — and, intoxicated with 
applause, we pass step by step into the flowery ambush, 
nor dream of our danger until, like the covert serpent, 
it uncoils itself, to sting our joys to death. 



CASE OP LUCEETIA CHAPMAN* 

In the month of September, 1831, Bucks County, 
and indeed the whole State, was thrown into commo- 

* As this case has been so often referred to in publications here and 
abroad, there can be no reason why the names of the parties involved in 
it, should be disguised or suppressed. 



^^g THE FORUM. 

tion by an alleged murder, of a most extraordinary 
and anomalous character. Mr. Chapman, an eminent 
teacher, and a man of the highest respectability, living 
in a state of competence, with an accomplished wife 
and five most interesting children, had died, apparently 
without disease, though he had been indisposed for 
some days previously, on the 23d of the preceding 
July. For a time mysterious suggestions were thrown 
out, of his having come to his death by unfair means ; 
and, at last, the report gaining strength by its progress, 
about three months after his burial, a number of re- 
spectable physicians were called upon to exhume and 
examine the body, to analyze the contents of the sto- 
mach, and to determine whether he had not been car- 
ried off by poison. 

A disinterment of the body took place accordingly; 
and, notwithstanding a long time had elapsed since his 
death, his frame was found in a perfect and somewhat 
wonderful state of preservation. A rapid and unsatis- 
factory anatomical examination took place ; the sto- 
mach of the deceased was removed ; an analysis of 
the contents took place, and from the report of the 
doctors and chemists employed, and from some other 
matters of suspicion, the public authorities deemed 
themselves called upon to prefer charges of murder 
against his widow and a young Spaniard, by the name 
of Don Lino, who had been a resident of the house at 
the time of his death. 



LUCRETIA CHAPMAN. 419 

Don Lino was soon arrested ; but the widow, either 
influenced by fear of opprobrium, or a sense of guilt, 
had fled to a remote corner of New York, (leaving her 
offspring at her mansion under the charge of her rela- 
tives,) where she continued until some time in Decem- 
ber, employed in instructing the children, as a gover- 
ness, of a very respectable family. 

About this period I was apprized, through the pub- 
lic journals, which teemed with miraculous accounts of 
this mysterious transaction, that Mrs. Chapman was 
arrested, and that it was understood — from what quar- 
ter I am at a loss to ascertain — that her defence was 
to be confided to me. Without bestowing more atten- 
tion upon the report, so far as regarded myself, than 
its source deserved, I awaited the period, should it 
ever arrive, of a more regular and legitimate applica- 
tion. Just about the close of the year, and, I think, 
a day or two before the session of the Court of Oyer 
and Terminer, in which the alleged offenders were to 
be tried, a lady and a male attendant were ushered 
into my of&ce, to whom, after the usual salutations, I 
addressed myself, in the commonplace language of 
"What service can I render you, madam ?" At this 
moment my eye, for the first time, rested upon the 
form and features of the visitant. There was some- 
thing striking in both ; her figure was above the usual 
height, slender and well-proportioned, and her face, 
though not handsome, bore evident indications of con- 



420 ' THEFORUM. 

siderable intelligence and refinement. She sat like a 
statue, and nothing but the restlessness and glare of 
her eye, gave denotement of animation. Without turn- 
ing to me at all, or changing her position, she uttered 
a groan, as from her inmost soul, and exclaimed, '^'Mrs. 
Chapman r as though the association of that name, 
with the notoriety of the charges, would be sufficient 
to apprize me of her lamentable story. It was so ; 
and I proceeded at once, as delicately as possible, to 
ascertain the object of the call, the precise nature of 
the accusation, and her means of defence. 

In this, after many sad interruptions, I at length 
succeeded ; and, although at the expense of great per- 
sonal and professional inconvenience, engaged to afford 
her my feeble aid upon her rapidly approaching trial. 
The conversation was long and interesting, though, at 
the same time, painful; and, upon its termination, I 
took leave of her, with the promise to give my attend- 
ance at the court, which sat in an adjoining county, on 
the ensuing Monday. She left me — was removed 
forthwith to the scene of trial, and, the offence not 
being bailable, she was, of course, conveyed at once to 
the gloomy cell of a common jail. 

I rarely remember a more disagreeable sensation 
than that which I experienced on assuming the respon- 
sibility of this cause, on the issue of which depended 
not only the life of an individual, but the hopes and 
happiness of aU who belonged to her. With no know- 



LUCRETIA CHAPMAN. 421 

ledge of the case but that which had been hastily col- 
lected ; with the certainty that the prejudices of the 
community set strongly against the defendant, I was 
ahve to no small degree of irritation towards the pro- 
fessional gentleman to whom Mrs. Chapman had early 
written, requesting that competent counsel might be 
employed, and proper measures adopted to afford her 
an opportunity of a fair and impartial trial in the re- 
sult of her being arrested. 

Complaints or repinings, however, never remedy 
evils ; and I, therefore, anxiously embraced the limited 
time allowed, in preparing myself, as fully as possible, 
for the investigation of this important, complicated, 
and mysterious transaction. I cast my eye about for 
some one who might be calculated to lighten or to 
share my labour ; and fortunately succeeded in fixmg 
upon a gentleman,* who, although young in the profes- 
sion, had given sufficient earnest of his fidehty, indus- 
try and talents, to render the selection a judicious 
one ; and I rejoiced the more in making it, as the ce- 
lebrity of the cause was such as was usually calculated 
to afford the best of opportunities to a young man to 
signalize and distinguish himself. He accepted my 
proposal to join in the defence with the promptitude 
which it called for, and the day after, we arrived at the 
scene of action. 

The County town, though of no inconsiderable size, 

* Peter M'Call. 



422 THE FORUM. 

was literally overflowing with witnesses for the prose- 
cution, and visitors drawn thither by the extraordinary 
features of the case ; and, for a time, it remained un- 
certain whether we should not be in the condition of 
Noah's dove, with no resting-place for our feet. At 
length, however, and late at night, we succeeded in 
obtaining lodgings, comparatively comfortable, and we 
entered at once upon the business of preparation. A 
most awful and embarrassing business it was. 

Without witnesses, without process to procure their 
attendance, and without an individual to serve the pro- 
cess if we had possessed it, in a strange place and sur- 
rounded by none but strangers, it is hardly to be won- 
dered at that our hearts almost sunk within us, at the 
idea of the fearful odds which we seemed inevitably 
doomed to encounter. In this condition, with as 
cheerful an air as we could assume, we waited upjon 
our client at her melancholy abode. If fate had so 
decreed, that the heavy grated door, which groaned on 
its hinges to receive us, should have closed forever 
upon me, I do not know that my emotions could have 
been more poignant upon entrance than they were at 
that moment. Habitually inured as I was to scenes 
of horror, and ready to do all in my power for the 
accused, I was conscious, from circumstances over 
which we had no control, that all would avail but 
little against prejudice and proof, both of which were 
arrayed in behalf of the prosecution. I contemplated 



LUCRETIA CHAPMAN. 423 

the prisoner as a victim, about to undergo the cere- 
mony of a trial, it is true, but entirely at the mercy 
of the Commonwealth, and almost without a single 
helping hand in her extremest need. 

Some of her witnesses were forty, and some four 
hundred miles off; not one was present. In all hu- 
man probabiUty she was Hable to be called upon in 
one hour to answer the charge. We conferred with 
her as fully as the state of her mind and ours would 
allow — ascertained the character of the evidence which 
probably might be procured, filled up the subpoenas 
with our own hands, employed officers for their service 
from our own purse, and determined that all that was 
practicable should be done, both for her sake and our 
own. The main hope of our reliance was the mere 
possibility that the evidence against her might occupy 
so much time as by chance to allow the return of our 
process, and that the witnesses thus procured would 
enable us, at least, to protract the investigation until 
those more remote might be brought to our aid. This 
was a forlorn hope, it is true, but it was almost all that 
was left. 

The trial, as we anticipated, was speedily called. 
The prisoners were arraigned, and pleaded not guilty, 
and the case was ordered to proceed. As a last eifort 
in behalf of the defendant, a motion was made for a 
postponement of the cause, on the ground of the ab- 
sence of testimony ; and after a brief argument, it sue- 



424 . THE FORUM. ■ : 

ceeded, and the trial was adjourned until the 13th day 
of February ensuing. " ' 

Such were the agitation and anxiety of my feelings, 
during this short period of suspense, that, for weeks 
afterwards, my health was evidently shattered, and I 
had barely recovered my composure and equanimity, 
when the allotted day arrived. Widely different, 
however, were my emotions at this tune ; the interval 
had been employed by my colleague and myself, in 
the necessary preliminaries of the trial. All that 
could be expected was done. Our witnesses were in 
readiness ; and we at least felt satisfied, that, if life 
were to be lost, it would not be without a struggle. 
The eventful morning came, and we took our profes- 
sional post at the side of the prisoner. Apprehension 
had given place to reasonable confidence ; and, so far 
from approaching the case reluctantly, we met it firmly 
at least, if not eagerly. The disclosures of the evi- 
dence, it is unquestionable, were shocking; and are 
briefly summed up in the following narrative : 

On the 17th of May, 1831, the young Spaniard to 
whom I have referred, presented himself, in a tattered 
and forlorn condition, at the door of Mr. Chapman, 
whose seminary was at Andalusia. He begged for 
refreshments and a night's lodging. Mr. Chapman 
directed him to a tavern but a short distance below ; 
but the stranger informed him, in his broken language, 
that he had already made his application there, and, as 



• 



LUCRETIA CHAPMAN. 425 

he had no money, had been refused. Mrs. Chapman 
then interceded for him, and at her instance, he was 
permitted to remain. In the course of the evening he 
related, in the presence of the family, the story of his 
misfortunes, and interested them all very deeply in 
his behalf. He said he was the only son of the Go- 
vernor of California, who held immense possessions in 
Mexico, among which he mentioned a gold and silver 
mine, and other sources of incalculable wealth. That, 
as he approached the age of manhood, his father deemed 
it expedient, in order to the completion of his educa-^ 
tion, and a proper acquisition of a knowledge of the 
world, that he should travel and visit Europe, which 
he accordingly did, under the charge of a distinguished 
physician, to whose government he had been confided. 
That they set sail for France, where they arrived 
without any material occurrence, literally loaded with 
the wealth which a fond father had lavished on them.. 
It so happened, as the story runs, that shortly after- 
their arrival in France, and while at church, the physi- 
cian fell down in an apoplexy, and instantly died.. 
Don Lino returned disconsolately to his hotel, an utter 
stranger, totally unacquainted with any other language 
than his own, and, changing his apparel, which was 
very costly, for that of an humbler character, threw 
himself in despair upon his bed. While in this state, 
the British consul (for his friend was an Englishman,) 
entered the chamber, and, in his ofi&cial capacity, di- 
voL. II.— 28 



426 THE FORUM. ■ ' 

rected all the trunks and property to be removed to 
his stores, in order that they might await the orders 
of the legal representatives of the deceased. Don 
Lino remonstrated, through an interpreter, against the 
injustice of the procedure, alleging that one of the 
trunks, containing money to the amount of thu'ty 
thousand dollars, belonged to him, and explained, as 
far as he could, the relation in which he stood to the 
deceased. This was all considered an imposture by 
the consul, who told him he was no more than a 
servant of the physician, a suggestion which derived 
strength from the present meanness of his attire ; and 
everything was immediately removed, leaving the 
wretched Mexican without money or friends, or the 
expectation of obtaining either. 

There are benevolent beings in all countries ; and 
some individuals of that class consoled him in his 
afflictions, and presented to him the sum of one hun- 
dred dollars, to defray the expenses of his return 
voyage. Another difficulty, however, here occurred ; 
there was no vessel bound for Mexico : but there luck- 
ily then was a vessel about sailing for Boston, in the 
United States ; and Don Lino, knowing that his grand- 
father owned a vast quantity of stock in one of the 
Boston banks, and also understanding that an inti- 
mate friend of his family, a Mr. Casanova, resided 
in that neighborhood, he concluded, in his emergency, 
upon adoj)ting this chance of bettering his condition. 



LUCRETIA CHAPMAN. 427 

and accorclingiy set sail for Boston, wliere lie arrived 
' early in May. 

Misfortunes, it is said, never come singly. Upon 
landing, he found that he had been deceived in relation 
to the stock ; and upon inquiring for his friend Casa- 
nova, he ascertained that he had recently married, and 
embarked with his wife for Mexico, hut was expected 
soon to return. Sank in the depth of disappointment, 
Don Lino was taken ill, became subject to extraordi- 
nary fits, and exhausted nearly his last shilling : but 
■ hearing, when partially recovered, that there were 
some Mexican gentlemen with whom he was ac- 
quainted, upon a visit to Count Survilliers, he set oif 
on his journey, and some days after, arrived at Phila- 
delphia ; when, what was his astonishment, to learn 
that the Count resided at Bordentown, at his chateau, 
which Don Lino had passed on his jom-ney. Of course, 
nothing remained but to retrace his weary steps to 
Bordentown, which he was engaged in doing, when, 
overcome by heat, hunger and fatigue, he presented 
himself, as we have related, at the hospitable mansion 
of Mr. Chapman. This "melancholy story sent his 
hearers weeping to their beds." 

A day or two afterwards, the carriage was ordered ; 
and Mrs. Chapman, who was the active in'dividual of 
the estabhshment, with the approbation, if not at the 
request of her husband, in company with one of the 
pupils of the school, set off with Don Lino, for the 



428 THE FORUM. 

residence of the Count, in the vicinity of Bordentown. 
When they arrived, the Count was at dinner with some 
gentlemen, and could not be disturbed. The steward, 
however, in reply to their inquiries, informed them that 
there had been some Spanish gentlemen there a few days 
before, but they had departed. This seemed partially 
to confirm Don Lino's story ; and, as the day was waning 
fast, and Mrs. Chapman could not w^ait for an oppor- 
tunity of seeing the Count, they retm^ned again to 
Andalusia. The result of the journey was communi- 
cated to her husband; and the attentions of the family 
to this distressed, though distinguished stranger, were 
redoubled. 

Mr. and Mrs. Chapman both wrote to his parents, 
in conformity with his direction — apprized them of his 
situation — pledged themselves to bestow upon him the 
regard which they should expect to be extended to 
their own children, in similar circumstances ; and con- 
cluded, by informing them, that, as he was desirous of 
learning the English language, the best instruction 
should be given to him during his residence at their 
house, that their means would allow. These letters 
being prepared, Mrs. Chapman, under the authority of 
her husband, accompanied the stranger to the house of 
the Mexican consul, for the purpose of procuring them 
to be forwarded. 

They waited upon the consul accordingly, who re- 
ceived them with great hospitality and kindness ; and, 



LUCRETIA CHAPMAN. 429 

as Mrs. Chapman had an engagement elsewhere, she 
left him and Don Lino engaged in conversation, with 
the promise of returning for the latter in the course 
of an hour or two, by which time she expected their 
business with each other would be terminated. 

Upon her return she found Don Lino at dinner with 
the consul and his family, of which she was invited to 
partake. This, however, she pohtely declined; and, 
taking her seat in an adjoining parlour, she was intro- 
duced to a lady of the house, who expressed to her 
the high sense of gratitude which she and the family 
entertained for the lavors which had been conferred 
upon a friendless, though distinguished Mexican. After 
various attentions, and an invitation to the house of 
the consul, she took her leave, and accompanied by 
Don Lino, returned to her own home. 

If anything had been required to confirm her and 
her husband in the entire belief of Don Lino's melan- 
choly tale, it was certainly derived from the supposed 
reception he had met at the house of a gentleman of 
unquestionable character ; particularly as that gentle- 
man, being himself a Mexican, w^as presumed to be 
intimately acquainted with his own government, and, 
therefore, perfectly able to detect any imposition that 
might be attempted to be practised upon him. From 
this period, therefore, Don Lino was to be considered 
as a permanent resident at Andalusia, and the family 
of Mr. Chapman, no doubt, one and all, considered 



4^3Q THE FORUM. 

themselves as highly honored by the presence of so 
exalted a personage. 

Time rolled on— every succeeding day seemed to 
confirm the pretensions of the stranger, and the at- 
tafchment of those whose hospitable abode he had se- 
lected as his refuge. Mrs. Chapman rode out with 
him frequently — ministered to his disease while sick — 
introduced him to her friends — spoke of him as her 
son — and, perhaps, displayed more attention and in- 
terest in his fate, than, in ordinary circumstances, 
would be deemed reasonable, or even consistent with 
decorum. 

Yet his gratitude appeared not disproportioned to 
the extent of the kindness received. Upon one occa- 
sion, when he was considered dangerously ill, he exe- 
cuted a document in the nature of a testamentary 
request, directing his father, upon his death, to pay to 
Mr. Chapman and his wife, each, the sum of fifteen 
thousand dollars, in consideration of their services. 
From this sickness he " recovered, but still his grati- 
tude had no limits. He stated that he had ordered a 
magnificent carriage to be built for them, under the 
direction of his friend, the Mexican consul, which 
would shortly be ready, when he hoped to see his 
benefactors and their family riding and enjoying them- 
selves in it. He desired Mr. Chapman to discharge 
the workmen engaged in the improvement of his build- 
ing, until his remittances should arrive, when, at his 



LUCEETIA CHAPMAN. 43^ 

own expense, he would have the house and grounds 
decorated and adorned in the Mexican fashion. He 
promised largely, and there was much reason to sup- 
pose his promises would be more abundantly fulfilled. 
The easy and supine nature of the husband, and the 
pride and ambition of the wife, were ahke gratified 
with the idea of countless treasures. The course of 
assiduous labor in their seminary was now deemed 
unnecessary; in short, everything was absorbed by 
the stranger. 

On the 17th of June, 1831, about the hour of re- 
tiring, Mr. Chapman was taken ill. 

On the 16th of June, 1830, Mina was in the City 
of Philadelphia, and at that time purchased a quan- 
tity of arsenic — professing to intend it for the pre- 
paration of birds. This was the day before the sick- 
ness of Chapman. The sickness was sh'ght at first ; 
but, on Monday, the 20th, Mrs. Chapman prepared 
some soup for him, which she took to the parlor, to 
season it. At that time, she and Mina were alone 
in the room. It was further attempted to be shown, 
that, at this time, the poison was mixed with the 
soup — taken to Mr. Chapman during the morning — 
— partly drank by Mm — and the rest thrown into the 
yard. In the evening, the chicken of which the soup 
was made was taken up to him, a small jDortion 
eaten, and the residue also thrown into the yard. The 
next day, a neighbor's ducks died in an unaccounta- 



^^2 THE FORUM. , . 

ble manner. This was ascribed to the arsenic. From 
the time of taking the soup, Chapman got worse, and 
complained of burning in his stomach — the symptoms 
indicated arsenic. In the evening, he complained of a 
want of attention. A friend stayed with him till 11 
o'clock, when Mrs. Chapman came in, and requested 
him to retire. He asked her to send for a physician, 
which she declined — and no physician was sent for 
until Tuesday evening — and his medicines were not 
administered. Chapman lingered until the 23d, when 
he died : and, on the 5th of June following, Mina and 
Mrs. Chapman were married. 

Three months after the death, (the marriage and 
other circumstances leading to suspicion,) a disinter- 
ment and a post-mortem examination took place, as we 
have already stated. In addition to these matters, it 
should be mentioned that the defendants, upon the first 
intimation of suspicion resting upon them, betook them- 
selves to flight, and, after a time, were with some diffi- 
culty arrested. 

The defence was, that Chapman was an aged man; 
that he died from natural causes ; that there was no 
adequate proof of poison; that Mrs. Chapman was of 
good character, and the daughter of a Revolutionary 
officer ; an estimable and moral teacher ; married in 
1816 ; resided in Philadelphia until 1828, when they 
moved to Andalusia, and lived in great domestic hap- 
piness with her husband. 



LUCRETIA CHAPMAN. 433 

These facts, as opened by the prosecuting counsel, 
Mr. Ross, (with whom Mr. W. B. Reed was associated,) 
were pretty clearly proved by the evidence. That is 
to say — the purchase of arsenic by Mina — the sickness 
of Chapman — the administering the soup — the throwing 
out the residue — the death of the chickens and ducks 
the day after. 

In addition to this, the doctors gave it as their 
opinion, from the state and smell of the stomach, — the 
symptoms attending the disease — the rigidity of the 
body after death, and its preservation for months after 
burial — that the death was caused by poison. There 
were other portions of the evidence which were fearfully 
corroborative of that mentioned : the marriage — the 
letter written by Mrs. Chapman to Mina — and her at- 
tempt to escape from justice, when she became an 
object of suspicion. The letter, especially, ajDpeared 
to be almost inexplicable, consistently with the idea of 
innocence. It ran thus : — 

"Andalusia, /itZ?/ 3l5^, 1831. 
" Sunday afternoon. 

" Lino, — Your letters of tlie 19tli and 28tli inst. are both now 
before me, both, of wbicli, together with yours of the 18th, have 
been carefully perused and re-perused by me this day. Your letter 
of the 19th, written at Baltimore on Tuesday evening, was not re- 
ceived by me untill Friday following ; when my anxiety was so 
great for you, fearing you were SICK, that I arose, and though I 
was without a cent of money in my house, (in consequence of 
having bestowed my all on you,) at 3 o'clock in the morning, and 



434 



THE FORFM. 



took a seat in the mail coaclij with an intention of following yon to 
Baltimore, if I did not find a letter from yon in the Citty ; hut what 
was my astonishment, Lino, when I called at the house of your 
Consul and was told that you had not been there for a long time, 
that they had heard nothing of your friend's death, and that your 
Consul with his sisters had gone to the falls of Niagara, instead of 
being at New Orleans, as you had informed me your Consul and 
Minister both were; I then made inquiry at the United States 
Hotel, and at Mr. De Brun's and then I called on Mr. Watkinson, 
who told me that your Consul had inform' d him that he believed 
you to be an imposter ! ! I was thunderstruck at this informa- 
tion ; and told Mr. Watkinson that I could not believe you were 
capable of so much Ingratitude, as not to return to reward me, who 
had ever been a sincere friend to you ; the truth of this assertion 
I believe you cannot doubt ; when you reflect but for a moment 
that when you were destitute, I took pitty on you, and gave you a 
home, fed you, clothed you, and nursed you when you were sick, 
&c. &c. If I have been sincere, why has Lino been induced to 
practice so much deception on Lucretia ? Why not keep your 
appointment and return to me the same week you left, on Saturday, 
at 4 o'clock, as you promised? — But too well you knew your own 
guilt ! ! You never intended to return to me : I thank you. Lino, 
and I thank my God, for having returned my dear innocent child 
Lucretia to me in safety ; for as you have been permitted to prac- 
tise so extensive a robbery on me, I feel thankful that my children 
are spared to me ; and perhaps may yet prove a blessing to me ; 
tho' you, Lino, are the cause of my enduring much misery at this 
present time ; yes, my heart is pained with the crimes you have 
committed ; think. Lino, (and if your heart is not of adamant,) I 
believe if you reflect for a moment on the cruelties you have prac- 
tised on me and on my dear daughter Mary, your heart will bleed 
with mine ! I have now no husband to aid me in supplying the 
wants of my dear Innocents. Ah ! Lino ! do not extend your 



LUCRETIA CHAPMAN. 435 

cruelties so far as to deprive me of every thing wliicli might be sold 
to aid in supplying my dear children with food and clothing ! Tell 
me in your next letter where I may find my horse and Dearborn, if 
you really have not sold them, but " have left them with a friend 
till you return ;" as you informed me in your first letter ; but if you 
have sold my horse and carriage, gold and silver watches, breast- 
pins, finger-rings, medals, musical boxes, silver bells with whistle 
and cake basket, &c. &c. and do not intend to send me any 
money as you promised to do, to relieve my distress, or need of 
money, I say, if you do not intend I shall ever possess any of the 
property you have deprived me of, than (then) I must tell you that 
I wish you would never write to me again, and do not request others 
with whom you correspond, to direct their letters to you here, and 
to my care, as you will find I have forwarded one to you by enclos- 
ing it in this of mine. But as you have forsaken me, do not tor- 
ment me by sending any more of your letters, filled as they are 
with /air ivords and pretended affection. By this time I suppose 
my rings decorate the fingers of one, whom, perhaps you do love 
sincerely ; and the worst wish that Lucretia sends after you, is, that 
you may he happy. You say in your last letter that "as often as 
you remember me, you bathe yourself in floods of tears," and that 
" you are dying of grief," &c. I cannot think you indvilge in grief 
if you are in possession of the $45,000 which you wrote me you 
expected to receive ; and then you visit the President frequently, 
and have the honour of walking with a Duke of England ; all this 
must surely make you happy, without your sending even a wish or 
a thought after me ! ! And then, I observe you speak of a female 

friend , who, perhaps, now receives your fondest caresses, 

and perhaps renders you perfectly happy. But no, Lino, when I 
pause for a moment, I am constrained to acknowledge that I do not 
believe that God will permit either you or me to be happy this side 
of the grave. I now bid you a long farewell. 

" Lucretia." 



436 THE FORUM. 

The grounds upon whicli the defendant rested, to 
resist the facts arrayed against her, were these : 
That she had not "been shown to have known any- 
thing of the arsenic purchased ; that the soup contained 
no arsenic ; that her daughter Lucretia gave the de- 
ceased the soup — and the chicken ; that she drank of 
the soup, and ate the chicken, after her father had been 
supplied, and before any portion had been thrown out ; 
that she was not affected, and, therefore, the soup 
could not have been poisoned ; that the ducks did not 
die of arsenic, but from lime water, by which the house 
was surrounded, as bricklaying was at that time going 
on ; that the symptoms were the ordinary symptoms of 
cholera; that the rigidity of the body was attributable 
to the bleakness of the morning, and the lapse of time 
before it was laid out ; that the preservation of the 
body did not arise from the antiseptic properties of 
arsenic, but from the unusual depth and gravelly cha- 
racter of the grave, and the sloping ground on the sui'- 
face, which carried off rain and moisture, and prevented 
decomposition. As to the flight, it was encountered by 
the argument, that weak nerves were no evidence of 
guilt, and that even a woman of undoubted innocence 
might be terrified, in the horrors of her situation, into 
indiscretion ; that she was surrounded by rumors, and 
crushed by grief, and that it was, therefore, too much 
to expect from her, the conduct which would belong to 
calmness and composure. As regarded the letter, the 



LUCRETIA CHAPMAN. 437 

footing upon which that was met, is best presented by 
the following remarks of the defendant's counsel : 

" There is one letter, however, written by the de- 
fendant to Mina, while at Washington, which is said 
to contain at least an equivocal' passage, and to afford 
ground for the behef, in the language of the opposite 
counsel, ^ that all was not perfectly right.' In passing 
to the consideration of that clause, we must be allowed 
to premise, that it is not sufficient, that all was not 
perfectly right ; it is incumbent upon the prosecution 
to show to your satisfaction that all was perfectly 
wrong. We agree that all was not perfectly right. 
It was not right that she should marry within a 
little month after her husband's decease. It was 
not right that Mina should sell her jewels, her plate, 
her horses, and her carriage, or that he should give 
away the trunk and books of her deceased husband. 
It was not right that he should take two ladies to 
the United States Hotel, and that, remaiaing there 
with them, he should pay their expenses and his own 
out of his wife's honest earnings. It was not right 
that he should squander her means in the journey to 
Baltimore, under the false profession that it was for 
the purpose of obtaining a legacy of forty-five thousand 
dollars, left by his friend Casanova ; and it was mani- 
festly wrong that he should practise aU sorts of frauds 
and falsehoods, upon this unsuspecting woman, during 
his absence. We agree, therefore, as we have said, that 



438 THE FORUM. 

all was not right ; but we deny that writing under the 
influences fairij attributable to these manifold outrages, 
this clause referred to in her letter, is to be considered 
as an evidence of her having voluntarily aided in the 
destruction of the deceased. 

" It is a well-settled principle in criminal jurispru- 
dence, and it cannot be too steadily borne in mind, 
that where the acts or language of men admit equally 
of opposite interpretations, that construction shall be 
adopted which is most favorable to innocence. With 
the benefit of this doctrine, let us turn to the objec- 
tionable paragraph. I quote it from memory, and 
shall willingly submit to correction, if I quote it erro- 
neously. ^ When I reflect, Mina, I am constrained to 
acknowledge, I cannot believe, that God will suffer 
either you or me, ever to be happy on this side of the 
grave.' Was not reflection upon the events just re- 
ferred to entirely sufficient to induce these expressions, 
without imagining the perpetration of an offence so 
heinous as that charged against the prisoner ? She 
had been imprudent ; she had been imposed upon ; she 
had been impoverished, together with her cliildren, to 
whom she was tenderly attached. And if this were 
not a state of circumstances calculated to produce such 
a reflection, I am utterly at a loss to conceive what 
would be. On this side of the grave, indicates worldly 
suffering for worldly indiscretion. If she had been 
guilty of the imputed crime, her fears would not have 



LUCRETIA CHAPMAN. 439 

. fallen short of that punishment which awaits the wicked 
lei/ond\hQ grave. 

" Taking these letters all together, and carefully pe- 
rusing them, nothing can be found inconsistent with the 
consciousness of innocence. Can you suppose, if this 
woman had committed so odious and hateful a crime as 
that imputed, writing as she did, under the sanctity of 
a seal, and to her partner in iniquity, she never would 
have allowed a single word to escape her, in which the 
lynx eye of the prosecution could perceive a semblance 
of guilty remorse or timidity ? If we are determined 
to suspect crime first, and then to distort and pqrvert 
every thing to the support of that suspicion, no man, 
innocent or otherwise, can escape punishment. I defy 
the counsel, with all their learning, skill, and accuracy, 
to write a letter upon any subject, in which I cannot 
detect, being suspiciously disposed, either an intention 
to conceal some motive that they entertain, or a dispo- 
sition to convey some idea that they do not. If their 
composition be loose, it will be indefinite and equivocal, 
and admit of a vast variety of constructions. If it be 
terse and precise, we may plausibly infer, from that 
very terseness and precision, that they are anxious to 
guard themselves against the disclosure of some lurk- 
ing motive." 

The trial commenced on the loth of February, 1832, 
and, on Saturday night, on the 26th of February, after 
an able charge from Judge Fox, the jury, upon an 



440 THE FORUM. 

absence of two hours, returned a verdict of not guilty, 
and the defendant was discharged by proclamation. 

Mina was afterwards tried on Tuesday, 25th of April, 
1832. Mr. Ross and Mr. W. B. Eeed prosecuted. 
The defence was conducted by Mr. M'Dowall and Mr. 
Samuel Rush. The prisoner was convicted on Friday, 
the 28th, after a dehberation of three hours, was sen- 
tenced on the 1st of May, and was subsequently exe- 
cuted. 

The most surprising incident to this cause we have 
now to relate : At the beguming of the trial, prejudice 
ran so high, that there was but little room for hope. 
That prejudice, however, diminished every day — and, 
on the Sabbath, (the day after the acquittal,) those who 
had previously been most violent against Mrs. Chap- 
man, visited her in crowds, congratulated her, and ac- 
companied her and her children in their carriage, in a 
sort of triumphal return to her house in Andalusia — 
the alleged scene of a husband's murder ! 

In taking leave of this melancholy and remarkable 
case, although professional compliments should form no 
part of our present business, we cannot do less than 
say, that Mr. Ross, Mr. W. B. Reed, and Mr. M'Call, 
all of whom were comparatively young men, (and this 
being probably their first highly important case,) mani- 
fested an ability and eloquence which have rarely been 
surpassed, and which wiU long be remembered. 



LOVE, JEALOUSY AND MURDER. ^^]_ 



LOYE, JEALOUSY AND MTJRDER. 



In the year 1834, tlie town of Bordentown, and, in- 
deed, the whole State of New Jersey, was appalled by 
the brutal murder of a young lady of a respectable po- 
sition in life, and of no inconsiderable personal and men- 
tal accomplishments. The murderer was a young man, 
a native of New England, who held a reputable standing 
in society, and who was employed as a contractor and 
engineer in Burlington County. 

The lady married in very early life, and had been left 
a widow, with two infant children. She resided with her 
mother, who kept a select boarding-house, and it was by 
C 's becoming an inmate of that house, that the ac- 
quaintance was formed which, in a few short months, 
had so horrible a termination. There was no disparity 
either in the age or condition of the parties, which for- 
bade their alliance ; and there soon grew up between 
them a kindness, not to say a tenderness of feeling, 
which, on his part, ripened into devoted attachment. 

The lady, though she did not encourage, did not check 
his growing passion as soon as she ought; and when her 
suitor made proposals of marriage to her, which she de- 
clined, or at least postponed, the revulsion produced by 
his disappointment almost drove him to desperation. He 
jealously watched all her steps — became enraged at any 
civility or consideration bestowed by her upon any one 
VOL. II. — 29 



^42 THE FORUM. 

to his exclusion, and became almost frantic at her hav- 
ing, at a large sleighing-party, withdrawn from his sleigh 
and taken a seat in another. In short, there was no- 
thing so harmless or insignificant in the deportment of 
the lady, as not to be construed by him into cruelty 
and wanton disregard. In this condition of things he 
threw up a profitable business — collected the money 
due to him, which amounted to a considerable sum, and 
uniting himself with some rowdy and reckless com- 
panions, he took, as he professed, a final farewell of his 
inamorata, and hurried off to the city of New York. 
There he threw off all restraints, indulged, contrary to 
his former habits, in the pleasures of the bowl — in 
gaming — and almost all the other vices. All this was 
apparently the result of despair rather than of tempta- 
tion. In a few days, of course, he was stripped of all his 
honest earnings — robbed of his watch — deprived of some 
portions of his wardrobe — and in less than a fortnight, 
beggared and disgraced, and full of revenge against one, 
to whom he attributed all these disasters, (from her 
having rejected him,) he returned to his former lodg- 
ings at Bordentown. Here he was confined to bed, 
from the effects of the excesses referred to, and during 
his confinement he was occasionally attended upon by 
the lady of his choice. He renewed his appeals to her, 
which, with greater reason than before, she discounte- 
nanced, though with the greatest delicacy and propriety. 
Finding that there was no hope of his suit proving 



LOVE, JEALOUSY AND MURDER. 443 

successful, lie resolved that no rival should triumph ; 
and having prepared a dagger, and an ounce of lauda- 
num, upon her next visit, on her again declining the 
proffered marriage, he caught her feeble form with one 
hand, and with the dagger in the other, struck her 
eleven times to the heart. He next seized the lauda- 
num, which was on the table near by, and attempted 
drinking it; but he was so excited, tremulous, and 
horror-stricken with what he had done, that the con- 
tents of the phial were spilt, and the murderer was re- 
served for the gallows. 

The most remarkable circumstance connected with 
this atrocious homicide, was this, that after the eleven 
wounds, all of which penetrated the heart, the poor 
victim called loudly and repeatedly for her mother, 
extricated herself from the grasp of her assailant, and 
walked down a flight of stairs. In the room below she 
fell, and in a few minutes expired. 

The offender made no attempt at escape — no excuse 
— ^but remained there stupefied with horror ; and was 
finally removed, under the heaviest execrations of an 
outraged community, to the jail at Mount Holly, there 
to await his trial. Such was the state of matters when 
counsel were applied to, to defend the prisoner. A gen- 
tleman of Mount Holly was associated with Mr. Isaac 
Hazlehurst and myself, and all proper means were 
adopted, in order to afford the defendant a fair trial. 
Any trial, however fair, would have resulted in his 



^4^ THE FORUM. 

conviction. The prejudice at the time ran so power- 
fully against him, that with the slightest show of proof, 
there would have been hut little hope of success. The 
blow was struck — a woman — an estimable woman, was 
the victim ; and as to what might be called a meta- 
physical defence, it was absurd. How could counsel 
give an ordinary jury to understand the delicate struc- 
ture of the human mind — its liability to sudden over- 
throw and insurrection. In order to the success of such 
an argument in any case, there must be reflecting minds 
to appeal to. There was scarcely a man on that jury 
that knew what mind meant, and the following appeal 
to them was not only lost, but thrown away. 

" Tiat maa, who sliall hare determined upon the guilt of the 
prisoner, without having heard what his connsel, feeble as they 
are, may urge in his defence, has permitted his zeal — his honest 
zeal, if you please — to rob the defendant of the threefold shield 
which law, justice and mercy themselyes have supplied. 

" Hear him for his cause — it is a solemn appeal — it is a story of 
the heart traced in characters of blood — and its sequel will be life 
or death. In such a case, the bosom must be locked up in triple 
steel, that now, in the prisoner's extremest need, can withhold its 
sympathies — its charities, from one who, whether guilty or inno- 
cent, craves only the humble boon of being Tieard before he is ad- 
judged — fairly and fully heard, as you yourselves would be entitled 
to be heard, should the great Disposer of events in the mysterious 
vicissitudes of life place you in his condition, and him in yours. 

" In what shall be urged in his behalf, I wish to deal fairly 
with you — and I am sure you will in return deal fairly with me. I 



LOVE, JEALOUSY AND MURDER. 445 

ask jovL, then, to abjure the idle rumors of prejudice, as it respects 
the subject of the issue which you are to try. Without this, all 
reasoning is vain ; as the mind at once rejects, without examining, 
that to which it is opposed. I ask you to abjure it, not only as it 
respects the prisoner, but his counsel — the former, I trust you have 
done ; the latter, I am sure you will do, when you perceive that the 
indulgence of one is just as fatal to the objects of justice as the 
other. 

" I speak not for myself personally — in this ease I am too insig- 
nificant to be the subject of remark, being utterly lost in the im- 
portance of the occasion ; but I speak to the views that are too 
generally entertained of professional exertion in behalf of an indi- 
vidual who has fallen under the ban of public reproach. It is too 
often imagined that professional remarks should be disregarded, or 
placed to the account of the pride of advocacy, instead of being 
received with a ready ear, and weighed and considered by a willing 
and a feeling heart. We are often told, and we shall be told again, 
that the facts of the case are the polar star by which you are to 
steer. Agreed, they are so — but the reasoning on the facts is just 
as important to a judicious result as the ascertainment of the facts 
to which that reasoning is to be applied j and you do the defend- 
ant — ^you do yourselves — ^you do the justice of the country as 
much wrong in closing your minds against a fair and honest dis- 
cussion of the principles of the case, as though, disregarding or 
dispensing with all evidence, you should, by your foreman, upon 
the indictment being read, promptly pronounce the verdict of death, 
and rely for justification upon the columns of some pernicious news- 
paper. Hear all — try all — hold fast to that which is good — and 
let the world frown as it will, the light of heaven will rest u-pou 
your verdict, a light which no earthly tempest can either extin- 
guish or obscure. 

" The advocate, it is true, maybe feeble — but so much the more 
important is it that you should lend him your honest aid, and not 



446 



THE FORUM. 



diminisli the little strength lie may possess by increasing the diffi- 
culties to be encountered. In vulgar, tbougli emphatic language, 
give us fair play, let us all discharge our duties mutually, faith- 
fully, and harmoniously. If we are to offer up another victim — 
let him, I say, be offered up at least with those ceremonials which 
become the ministers of justice, and her own sacred temple, and 
not swept from the face of the earth by a whirlwind of blind, in- 
discriminate, headlong and exterminating rage. I ask this for the 
prisoner — Will you refuse it ? I solicit it for justice — Can you re- 
fuse it ? I demand it for yourselves — Dare you refuse it ? 

" There has been, we are told — Death — an untimely death — 
the death of an amiable, an accomplished female. I mourn as much 
as the opposing counsel, while I am compelled to confess it. But is 
the calamity abridged by depriving another fellow creature of his 
life ? Will the flowers refuse to spring from her pure and unpol- 
luted grave, unless moistened and nourished by the blood of the 
prisoner ? ' But,' says the learned counsel, ' she died by his 
hand' — fatal and unquestionable truth ! Yet all this may be, and 
still to deprive him of life, may be less pardonable than even the 
offence which is the subject of complaint. It is the licart and not 
the Tiand of the alleged offender that is to be examined. It is the 
motive, the impulse, and not the act itself that is the subject of 
contemplation. Thousands of cases present themselves — none more 
melancholy or deplorable, it is true — but all more heinous, in which 
life may have been lost, and still the actors in those bloody scenes 
remain free from legal or moral reproach. 

''Man is a moral and responsible agent; such, at least, is his 
presumed character, and as such he is rewarded or punished. His 
reason is sovereign, and he is a traitor to it, should he voluntarily 
abuse or pervert its divine precepts. But take reason from him — 
destroy all the delightful harmony of the intellectual structure, and 
render it like 'sweet bells jangled out of time and harsh/ and 
where is his responsibility, either to this world or the next ? Would 



LOVE, JEALOUSY AND MURDER. 447 

it not be barbarous — manifestly unjust, to add to tbe afflictions of 
3. distracted and distempered mind the still heavier curse of an 
ignominious and disgraceful death ? — a death provided and designed 
only for those the condition of whose mental faculties supplies them 
with the rational power to choose between good and evil. I agree 
that all men are presumed to be sane until the existence of insanity 
be shown — and, on the other hand, I contend that when general 
insanity is once shown, the presumption is in favor of the alleged 
offender, and it is incumbent upon the prosecution to defeat or 
remove that presumption by establishing a lucid interval at the 
time of the commission of the offence. But, if the insanity relied 
upon be not general, but partial, and of a temporary existence, all 
that those on the part of the prisoner are bound to show is, that 
the insanity existed at the very period to which the charge against 
the prisoner refers. 

" In the construction and interpretation of the evidence upon 
these points, however, there is this essential difference — We having 
succeeded in creating rational doubts of the sanity of the defend- 
ant, the mercy of the law, which, as I have said, ' spreads undi- 
vided, operates unspent,' through all stages and branches of crimi- 
nal jurisprudence, entitles the defendant to an acquittal. For 
there is no difference between a reasonable doubt of the commis- 
sion of the act itself, and a similar doubt as to the moral agency or 
responsibility of the defendant. It is in vain for the gentlemen to 
tell you that the fact itself is as plain as a sunbeam ; that it has 
been abundantly proved — that it is not denied. The indictment 
charges the act with having been committed feloniously and with 
malice aforethought — the motive is the essence of the offence, and 
where there is no mind there is no motive." 

The defendant, as has "been intimated, probably 
could never have been entirely acquitted, but still, the 



44S' THE FORUM. 

diflSculty of the case was increased by the state of the 
law at the time of his trial. There was at that period 
no "murder in the second degree/' in New Jersey.* 
Felonious homicides were there divided, as in England, 
into murder and manslaughter. The gulf between 
murder and manslaughter was too wide to be over- 
leaped. Nor is it even certain, that if murder in the 
second degree had existed under the laws, that the facts 
in this case could have been reduced to that limit. 

After a trial of upwards of a week, during all which 
time the able Chief Justice, Hornblower, displayed alike 
great comprehensiveness of mind and great humanity, 
the result was a conviction. 

The counsel concerned for the prosecution, were 
Mr. J. Moore Wliite, Mr. Warren Scott, Mr. Southard, 
Mr. Dayton, and Mr. Hamilton. For the defence, Mr. 
Cambloss, Mr. Hazlehurst, and David Paul Brown. 
The arguments were elaborate, but on the part of the 
defendant, almost entirely hopeless. 

During the course of the trial there was an occur- 
rence which is entitled to notice. When I first called 
upon the prisoner, after he had furnished me with 
some of the prominent details, I asked him how the 
deceased was dressed at the time of the blow. He said, 
in black. I observed, "that was better than if the 
dress had been white." Upon which the prisoner turned 

* Murder in the second degree has since been introduced, and the law 
in that respect in New Jersey, resembles that of Pennsylvania. 



LOVE, JEALOUSY AND MURDER. 449 

hastily round, and asked what diiference that could 
iliake. The reply was, "No difference in regard to 
your offence, but a considerable difference in respect to 
the effect produced upon the jury by the exhibition of 
the garments, which no doubt, will be resorted to." 
And so upon the trial it turned out. The black dress 
was presented to the jury — the eleven punctures through 
the bosom pointed out — but no stain was observable, no 
excitement was produced. At last, however, they went 
further, and produced some of the white under gar- 
ments — corsets, etc., all besmeared with human blood. 
Upon this exhibition there was not a dry eye in the 
court-house. And the current of opinion continued to 
run against the defendant from that moment until the 
close of the case, and finally bore him into eternity. 

There are two other matters — matters connected 
with the history of the unhappy man — that deserve 
notice. After his conviction, when stepping into a car- 
riage with my family to return home, I was informed 

by a person that C wanted to see me, and that he 

had resolved to take his own life, in order to avoid 
public execution. Directing my family to wait for 
me, I went forthwith to the prison, where I depicted to 
him the horrors and the hopelessness of suicide — 
showed him it was a crime of the darkest dye — that, 
as it was the last act of his life — and as there was no 
repentance in the grave, his perdition must be irrevo- 
cably fixed. After going into the matter much more 



450 THE FORUM. 

fully, the unhappy man relinquished a knife, which he 
had concealed in his clothing, and abandoned the notion 
of "self-slaughter." 

Subsequently, and as the time for the expiation of 
his offence was drawing near, he became very much 
alarmed, but strange to say, his fears were all directed 
to physical suffering — the pains of the body — in the 
article of death. He consulted the doctor as to the 
best mode of avoiding prolonged agony. He studied 
the length of the rope — the fall that would be necessary 
to dislocate the neck, and adjusted all his plans with 
the utmost care. But while making these sad arrange- 
ments, he also contrived to loosen and remove the bars 
of his cell, and to escape through an aperture thus 
formed, of not more than fourteen inches square. He 
was gone — rewards were offered— the county swarmed 
with pursuers — the woods in the neighborhood were 
surrounded, but no discovery was made. In a short 
time no doubt the search would have been abandoned; 
when, on the night of the second day, he issued volun- 
tarily from his hiding-place with an axe upon his shoul- 
der, and surrendered without any attempt at resistance, 
declaring that he was hungry, and had had nothing but 
a few crackers to eat for the last forty-eight hours. 

This is, perhaps, the most extraordinary feature in 
the melancholy career of this young man — shrinking 
from an ignominious death — having succeeded in escap- 
ing from his imprisonment, and eluding his pursuers — 



MURDER AND MAGNANIMITY. 45]_ 

a good swimmer, and within a short distance of the 
Delaware river, which, once crossed, he might have 
considered himself safe. That, in these circumstances, 
he should have loitered about in the woods, in the 
neighborhood of the prison, for more than two days, 
and then voluntarily surrendered himself, because he 
was hungry, would almost seem to exceed the limits 
of rational behef. Yet, so it was — and the gallows 
was the sequel. 



MURDER AND MAGNANIMITY. 

The earliest case that I distinctly remember, was 
that of John Joyce and Peter Mathias, for the murder 
of Sarah Cross. I was then nearly twelve years old, and 
as the murder took place in the neighborhood of my 
residence, was induced by youthful and natural curios- 
ity to go to the court to hear the trial. The court-room 
was very much crowded, and it was only by favor 
that admission was obtained. The prisoners were de- 
fended by Richard Rush — afterwards Secretary of the 
Treasury of the United States, Attorney General, etc. 
— and by Nicholas Biddle, a distinguished scholar and 
most accomplished gentleman, subsequently President 
of the Bank of the United States. 

In despite, however, of the ability and eloquence 
of the counsel, both of whom were very young men. 



452 THE FORUM. 

though of great promise, the defendants were convicted, 
and shortly after, executed. The execution was much 
talked of among the children at the time ; and as one 
of its mysterious and startling incidents, it was said 
that after Peter, who was the least offender, was cut 
down, by dint of the galvanic i^rocess he had been 
restored to life. 

Years rolled round. The murder and the miracle, 
as it was considered, were both forgotten; when in the 
year 1822, (fourteen years after,) Luke Morris, Thomas 
Harrison, and Isaac T. Hopper, called upon m'e to de- 
fend an alleged fugitive slave from the claims of his 
master.* The case was to come before Recorder Reed, 
who had consented to give a hearing at the Prune 
Street Prison, where the slave was confined. 

On arriving at the place of trial I approached the 
respondent, and privately, as a preliminary, inquired 
his name. He told me his name was Peter 3IatMas I as 
quick as lightning, my boyish recollections recalled to 
my mind the report that Matliias had been restored to 
life by the galvanic experiment. Scarcely doubtmg that 
the man before me was this veritable personage, and in- 
voluntarily somewhat recoiling from him, I exclaimed, 
"Peter Mathias ! — why a man of that name was execut- 
ed some years ago for murder." My astonishment was 
not a little increased, when he replied, " Come near, and 
I will tell you all about it." If I had had any doubts 

* The master was represented by Charles Jared Ingersoll. 



SUPPOSED MUTUAL MURDER. 453 

before they would have vanished. Upon approaching 
liim, however, he soon relieved my apprehensions by 
the following extraordinary disclosure : " My name is 
not MathiaSj but John Johnson. I knew Peter Mathias 
when he was thrown into prison. I also at that time was 
imprisoned for an assault and battery. On the morn- 
ing that Peter was led forth to execution, he called me 
to him, and said, 'John, you are a slave; I am/ree; here 
are my freedom papers ; I am going where I shali mot 
want them ; they may be of use to you — take them ; 
change your name to Peter Mathias ; and if your mas- 
ter should ever claim you, show these papers, and they 
will protect you.' " 

Of course, no honorable advocate could take ad- 
vantage of such an artifice, and the unhappy man was 
restored to the claimant. This simple story is intro- 
duced to show in what horror slavery is held by 
these wretched beings ; and also to show how much 
magnanimity may be sometimes concealed under a 
sable skin. Had Peter been a Roman, he would have 
figured for this one act upon the historic page, and 
secured an immortality of fame. 



SUPPOSED MUTUAL MURDER. 



On a Sabbath night, in the summer of 1845, a man 
staggered into my office, weak from exhaustion, and 



454 



THE FORUM. 



perfectly wild witli terror, and suddenly exclaimed, " I 
have just killed a man, and I want your advice as to 
what I am to do." " First let me know," I replied, " what 
you have done." The story ran thus, in his own words : 

"As I was coming out of Darby with my gun, 
two gentlemen drove along in their buggy, and so 
closely to me, that my gun got caught in the wheel, 
and broke one of the spokes. Immediately one of 
the gentlemen jumped out, and approaching me vio- 
lently with a loaded whip in his hand, struck me 
with great violence, and as he passed, I struck him 
with the butt of the gun, and he fell dead." I suggest- 
ed the probability that he was not dead. But the poor 
man could not change his mind, and added, that so 
great had been his terror, that he had taken a back road 
and run all the way to the city, a distance of five 
miles. "Now," added he, "what am I to do ?" The 
advice given to him was to repair immediately to a 
neighboring magistrate — to relate his story exactly as 
he had related it to me — to request it to be taken 
down in writing — to give his exact residence, and to 
promise to give any bail, or surrender himself to prison. 
All this was done, and my name was left at the ofi&ce 
of the magistrate. 

Three days after this, the magistrate called upon 
me, and requested that I would send the self-accused 
man to his of&ce, and related the following circum- 
stances : " Yesterday morning," said he, "a gentleman. 



INFANTICIDE. 455 

slightly injured about the head, called and informed 
me that he had reason to believe he had killed a man 
on the Darby road ; that he had struck him a heavy 
blow with a loaded whip ; that he himself also received 
a blow by which he was prostrated ; that upon recovery, 
the party whom he struck could nowhere be found, and 
that no doubt he had dragged himself into some covert or 
ditch on the road-side, and there died; that as night came 
on, he could not be found, but no doubt was dead, as 
the blow was a severe one." The two ghosts were of 
course soon brought together, and there never were 
two apparitions more delighted — so they shook hands 
— mutually paid costs — and parted friends. 



INFANTICIDE. 



A young and interesting girl, of a respectable posi- 
tion, had trusted, and been betrayed. She became a 
mother. At the age of three weeks the child died — 
somewhat suddenly. A post mortem examination took 
place. The death was said to have been produced by 
arsenic, and the medical witnesses strengthened that 
opinion by their testimony. The mother was indicted 
for murder, and was tried before Judge Symser, of 
Montgomery County, a humane, an industrious, and 
eminent judge. 

In addition to the scientific evidence, and in strong 



456 THE FORUM. 

corroboration of it, it was shown that a day or two 
before the death of her infant, the mother had sent 
for half-an-ounce of arsenic to a grocer's. That 
after the death the arsenic was taken to the grocer's, 
and was weighed, and had lost twenty-four grains 
in its weight. This circumstance, together with the 
opinion of the chemist, presented a strong case. Nei- 
ther was sufficient in itself, but together they were 
dangerous. Of course, the cross-examination as to 
the weight, was very rigid and severe. Upon this 
particular point it ran thus : 

"When the arsenic was purchased, how did you 
weigh it ?" 

" I weighed it by shot." 

"How many shot?" 

"Six." 

" Of what description ?" 

"No. 8." 

" When it was returned, did you weigh it in the 
same scales?" 

"Yes." 

" Did you weigh it with the same shot ?" 

" I weighed it with shot of the same number — for I 
had no other number." 

"How much less did it weigh?" 

" Twenty-four grains less." 

It was plain that this testimony bore hard upon the 
prisoner — but at this stage of the case the court ad- 



CASE .OF DR. ELDRIDGE. 457 

joiirned. Immediately my colleague (Mr. Boyd) and 
myself visited the stores of all the grocers, and took 
from various uncut bags of No. 8, the requisite number 
of shot, subjected them to weight in the most accurate 
scales, and found that the same number of these differ- 
ent parcels of shot varied more in weight than the 
difference referred to as detected in the arsenic at the- 
time of its return. The shot — the grocers — the apoth- 
ecary — the scales — were all brought before the Court. 
They clearly established the facts stated, and enabled 
us fairly to contend that there had been no portion of 
the arsenic used, — which argument, aided by the excel- 
lent character of the prisoner, proved entirely success- 
ful, and after a painful and prolonged trial, she was 
acquitted; so that her life may be said to have been 
saved by a shot. 



CASE OF DR. ELDRIDGE.-FORGEET. 

On the 1st of May, 1840, the newspapers teemed 
with accounts of a series of forgeries, perpetrated the 
day before, on twelve of the Philadelphia banks, that, 
for skill and boldness, surpassed all former exploits in 
the annals of that branch of crime. It seemed, that 
more than a year before, the offender, whoever he was, 
had opened accounts in twelve city banks, and had 
kept them in active motion until the final consumma- 
tion of his purpose. Tie used the names of three firms, 

VOL. II. — 30 



458 



THE FOEUM. 



entirely fictitious, viz., in four of tlie banks, Geo. B. 
M^Kee & Co. ; in four others, Sternes & Wood -, and 
— , in the four other banks. It was ap- 
parent, from an analysis of the deposits and drafts, 
that his whole stock of cash was less than twelve hun- 
dred dollars, yet, with this sum of money, he kept up 
the appearance of a lively business account in each 
bank, by drawing and depositing continually, and thus 
established with the tellers, for these fictitious firms, a 
familiarity and confidence that enabled him to achieve, 
in the end, complete success. , ,;: ' 

The plan which he adopted, was this : In Octo- 
ber, 1839, aU the city banks had suspended specie 
payments, and had not yet resumed; it was, there- 
fore, policy on their part, to reduce thek circulation as 
much as possible ; and the mode they practised to carry 
out that determination, enabled the forger to mature 
his purpose with less risk, if, indeed, as was generally 
believed, it did not suggest it to him. The checks of 
their customers were no longer paid in bank notes ; 
but, as presented, if of any amount, were marked on 
theii' face " Good" by the paying teller, with his signa- 
ture subscribed. These checks were then passed from 
hand to hand ; but, generally, they were deposited in 
banks by tho holder as cash, in the bank in which he 
happened to keep his account. 

For some months after this system was adopted by 
the banks, it was carried out with great strictness. No 



CASE OF DR. ELDRIDGE. ^ 459 

bank notes could be obtained from any bank in payment 
of checks. In course of time^ however, the banks relaxed 
the rule ; and, in April, 1840, they would, if desired by 
the holder, pay out their notes, though certainly some- 
what reluctantly. On the 30th of April, the ingenious 
contriver of the scheme we are describing prepared 
thirty-six checks, twelve for over eight hundred dollars 
each, twelve for over four hundred dollars each, and the 
remaining twelve for twelve hundred and thirty dollars 
each. The two former series of checks were drawn by 
each of the fictitious firms, on one of the particular banks 
in which the account of that firm had been kept, and all 
marked " Good," with the forged signature of the paying 
teller of the bank. The remaining checks were drawn 
ready for use, when the forged checks should be deposit- 
ed, and entered as cash m the respective banks. On the 
day of final operations, the money remaining had been 
prudently withdrawn from the banks, so that nothing 
should be wasted. 

Armed with these thirty-six checks, and with his 
twelve bank books, the forger started out, on the 30th 
of April, 1840, to reap his felonious harvest, and, in 
two or three hours, succeeded in obtaining twelve hun- 
dred and thirty dollars from each of the twelve banks 
whom he had favoured with his custom. He deposited 
in each, one of the checks of over eight hundred dol- 
lars on another bank, and one of the checks of over 
four hundred dollars, also on another bank, adroitly 



450 THE FORUM. 

placed with thirty dollars in hank notes in the hank 
hook ; and the credit was entered hy the receiving 
teller. He, then, in every instance, walked to the desk 
of the paying teller, presented the check of twelve 
hundred and tlurty dollars upon that hank, stated that 
he wished it paid in notes, and received the amount 
accordingly. The operation went through with the 
most complete success. In fact, the forgery of the 
signatures of the paying tellers of the different hanks 
was so well executed, that, until they were carried 
around, as usual, to the hanks the next morning, and 
the comphcated machinery of the fraud gradually de- 
veloped itself, no suspicion was excited. 

The interest excited by this bold exploit in crime, 
was soon after increased, by the remarkable circum- 
stances connected with the arrest of the party accused. 
It is due to the defendant to say that after a series of 
trials he was acquitted. 



PERILS OF IXFIDELITT. 

One of the most extraordinary characteristics of an 
infidel, and one that I have never heard adverted to, 
is. that while he assumes bravery enough to defy the 
Deity and trample upon his holy word, he is, of all 
human beings, the greatest and most unmitigated cow- 
ard, when opposing his fellow men, and confronting 
human laws. He can bear prospective and eternal 



PERILS OF INFIDELITY. 4Q1 

punishment beyond the grave, but immediate and tem- 
poral punishment, though it be but the punishment of 
opinion, entirely overthrows his philosophy. 

I have known a witness engaged for hours in endea- 
voring to evade an acknowledgment of his infidelity, 
though he would voluntarily obtrude it, perhaps, upon 
any private opportunity. For the benefit of those who 
are of this way of thmking, and who consider future pun- 
ishment so remote, as to venture to sport with and in- 
vite it, we may be permitted to say, what to some will 
be matter of novelty, and to many matter of interest, 
that in most Christian governments, and especially in 
this Republic, no man possesses the full franchise of a 
citizen, who does not believe in a Creator, or a future 
state of rewards and punishments. Nay, to such a 
depth is he degraded, that he not only can hold no 
of&ce of trust or profit under the Constitution and laws 
of the land, but he cannot be permitted to testify, 
either for or against another, or in his own behalf, even 
where he has sustained personal injury : he is placec 
upon the footing of a felon, against whom sentence has 
been pronounced, with this difference, that the convict 
may be restored to competency by pardon, though he 
retain the stolen ^oods, but the Atheist never can be 
restored, until he recant his opinions, and of course, 
cease to be an Atheist. 

We remember two remarkable instances, illustra- 
tive of these positions ; one in a civil, the other in a 



^(32 THE FORUM. 

criminal case : — A merchant of great wealth, having 
instituted a suit against another, offered liimself to 
prove, according to the general legal privilege, his 
books of original entries, upon the estabHshment of 
which, as they were kept in his own handwriting, his 
entire fortune depended. Before he touched the Bible, 
to be sworn, the opposite counsel called two jvitnesses, 
who proved that some months before, the plaintiff had 
stated that the Bible was no better than a romance, 
and that future rewards and punishments were all a 
farce. Of course he was excluded, until with difficulty 
he succeeded in showing, that since the time of using 
those expressions he had reformed his opinions, become 
a regular attendant at church, and had invoked the aid 
of a minister of the gospel in the last sad offices perform- 
ed for a dying friend. How narrow was his escape from 
annihilation on this side of the grave ! AVhen finally 
allowed to be sworn, you may suppose he professed 
the most devout belief in all that was necessary to ren- 
der his testimony effective. 

The other case to which I have referred, was that 
of an individual charged with murder ; the only evi- 
dence against whom, were the dying declarations of 
the wounded party. He was shown, also, to have re- 
peatedly used expressions similar to those adverted to 
in the civil case ; and although a consciousness of ap- 
proaching death is deemed equivalent to the obligation 
of an oath, yet as an infidel could not be sworn, his 



PERILS OF INFIDELITY. 4(33 

dying declarations could not, of course, be received. 
These decisions of the law, to say nothing of piety, 
are founded in the purest reason.* Every man who 
becomes a witness, assumes an obligation to tell the 
truth ; but where is the obligation in such a case as 
this ? A man who does not believe in a God, certainly 
has no right to challenge belief at the hands of his 
fellow men. But, as we have intimated, there are still 
other disabilities to which an unbeliever, such as I have 
spoken of, is subjected. From the highest to the lowest 
pubhc office or function in the General or State govern- 
ments, the sanction of an oath or affirmation is requu-ed. 
The President of the United States, the Senate and 
House of Representatives — all the members of the 
judiciary — the jurors, who are to determine upon the 
rights and Hberties, and lives, of those committed to 
their charge ; the counsel, who are attendants upon 
the courts of justice — nay, the very bailiff or tipstaff 
who escorts the jury, are all swofn to the faithful dis- 
charge of their respective duties, and therefore, no 
man who is an imbeliever, in the sense in which we 
have spoken, can be competent to fill any of those 
posts, or exercise any of those functions, or indeed 
any other of&ce or function which, under the Constitu- 
tion and the laws, requires the preliminary obHgation 
of an oath. 

These penalties, or these deprivations of privilege, 

* Lord Bacon. 



454 '^S^ FORUM. 

as they may more properly be called, belong to civil 
polity, and are essential to those principles upon which 
the administration of temporal justice is founded. 



TRIAL OF JOHN WINDSOR FOR IITRDER. 

^ As remarkable a case of murder as probably ever 
happened m this country, is that which is now 
briefly placed before the reader. It was tried be- 
fore the Court of Oyer and Terminer, held at George- 
town, Delaware, on the 25th day of June, 1851. The 
trial itself was surrounded with circumstances some- 
what unusual. The case occupied nearly two weeks; 
and the excitement produced through the surrounding 
country became so great, that several days were occu- 
pied in obtaining a jury. This, however, was at last 
accomphshed, after exhausting the regular panel and a 
gTcat number of talesmen : sixty-four challenges for 
cause, and fifteen peremptory challenges, having been 
made. But we pass over many unusual incidents 
connected with this case, and proceed to a brief history 
of the facts essentially involved in the issue. 

The prisoner, John Windsor, was a man of about 
seventy years of age, of small and delicate person, and 
bore the appearance of having been respectably as- 
sociated m life, and proportionably well educated. 
Through honest industry and attention to business he 



TRIAL OF JOHN WINDSOR. 455 

had succeeded in laying up a pretty considerable amount 
of property. About six years before the time of this 
trial, he lost his first wife, and. some two years after 
that event, married the unfortunate woman who came 
to her untimely death by his hands. She was quite 
young — some twenty-three years of age, and described 
to have been interesting, faithful, affectionate, and, in 
a word, all that her husband conceived she was not. 
By this wife, Windsor had two children; but so far 
from their births affording to their paternal parent the 
pride and satisfaction that it would be supposed his ad- 
vanced age would receive from such events, they were 
the innocent cause of that unfounded suspicion which 
finally developed itself in decided monomania, and ter- 
minated in the murder of this unoffending and inno- 
cent woman. 

Windsor conceived the idea that these children were 
not his own — the notion originating, no doubt, from liis 
reflection upon his advanced age, and the great disparity 
of years between himself and wife. There was, however, 
no proof of this, though it is a fair surmise, to explain 
how the demon of jealousy and suspicion first crept into 
his bosom. He had been married before, and from all 
that appeared to the contrary, had lived peaceably enough 
with his first wife, who, we believe, never brought him 
any children. He had always been a strange man, 
and by ordinary people, would have been considered an 
insane man, as far back as he could be traced, but by 



466 THE FORUM. 

the extraordinary people of the county where he lived, 
it appears he was regarded without remark or suspicion. 
His beliefs and superstitions on many subjects were kin- 
dred to those of others, and in proportion as he exceeded 
them in his disordered flights they venerated him rather 
as a superior being. He behoved in ghosts, in fortune- 
tellers, charms, and witches — so did they. Their folly 
was from ignorance — his from a diseased physical organ- 
ization and perverted mind. But this distinction they 
could not see ; and the fact has only been adverted to 
here for the purpose of showing how difficult it would 
be to convince such a set of people that any man could 
be insane, whatever might be his doctrine or conduct. 

The doubt of the legitimacy of the children having 
once entered liis mmd, it naturally sought for objects 
to connect with it and strengthen it. It seems that 
there was one Joseph Osborne, who was acquainted with 
Windsor's wife, and frequently visited the defendant's 
store and house — upon this man his suspicions fell, 
though without the slightest foundation. 

For some considerable time previous to the murder, 
Wmdsor watched every action of his wife and this 
Osborne, closely. Their most innocent and ordinary 
actions were construed by him into evidences of the 
strongest guilt. He made memoranda on pieces of 
paper, and the backs of old almanacs, etc., of every 
thing they did and said, every expression of theu- 
countenance, their slightest gesture, both when they 



TRIAL OF JOHN WINDSOR. 4.QJ 

were apart, and together. Some of his entries were 
such as these : " 14:th of April. — Found them fastened 
up together — wife confused, etc. Quarrelled with wife 
about it. Wife abused me about Osborne. She would 
delay milking till dark to meet 0. ; traced their tracks ; 
showed them to Ann and John Rollins ; caught them 
together afterwards. She went home 5th January, 
18^, to her father's; before she went, she took a 
saunter in the garden to the grape-house, touched the 
strainer as she passed, and 0. met her there; saw 
the track plain ; saw him in the cooper-shop beckon- 
ing for her. January., 184 7. — Saw wife and . winking ; 
he patted her on the shoulder. February 14. — She 
went to see 0. March \Mli. — Wife angry because she 
can't see 0., which she says is heaven; says she didn't 
like me. May 2. — They meet out — so every oppor- 
tunity while I was sick. He poisoned my dog. 
July 9. — Wife abused me — said I was a fit associate 
for Bill}^ Briam. Aug. 2Wi. — She was with 0. last 
night. I looked sulky in the morning, and she took 
the hint and denied it. Od. 11th. — She was with him 
in the stable. I now found out that rattling the 
strainer was a sign for him. Ajmll. — Said she was 
not satisfied with me; said I need not accuse poor 0. 
June 7th and 9th. — They were together; also 28th and 
29th. She erased the tracks with a hoop ; she made 
sport of my accusations. She found out she was preg- 
nant, and tried to make me believe it was mine. I 



468 'fSE FORUM. 

walked with her, and going by where the strainer was 
hung, she touched it; knowing it was a sign for 0., I 
accused her of it, and she ^ blowed me,' which came 
near kilhng me, etc., etc." 

These notes contained almost a diary of his suspi- 
cions — his wife's conduct, etc. ; a note of every one 
who came to the house, and showed suspicions of 
almost every one. They stated many instances of 
abuse of himself by his wife, by words and blows ; 
most aggravating and tantalizing language, &c. The 
above extracts, from the original papers kept by the 
prisoner, and produced at his trial, will serve to give 
a fair idea of his condition of mind at the time to 
which we refer. 

Day by day, this delusion strengthened upon 
him. And there was still another cause more extra- 
ordinary, added to it. He supposed (obviously, from 
his reliance on witchcraft,) that his wife and Os- 
borne had acquired the power of blowing "a hot, 
poisonous stuff" upon him, and that they were con- 
stantly exercising this power, for the promotion of 
their criminal intercourse. Nor was this suspicion 
confined entii'ely to these two, but he thought that 
several of his neighbors, that he believed to be con- 
federates with and abettors of his wife and Osborne, 
possessed a similar power of doing him injury. He said 
that they all could Uoiv this hot stuff upon him from 
a considerable distance, and that his nose, flice, head, 



TRIAL OF JOHN WINDSOR. 4^9 

and wliole body, were continually burning with it. It 
was to this power that he referred, when he speaks in 
his memorandum of his wife's having " blowed him." 

In a short time from the commencement of these two 
several delusions, they became combined together — 
inseparably — and finally took entire possession of 
his mental faculties. His entire hallucination had 
reference to his wife's infidelity, and the conspiracy to 
poison him. He would sometimes get up from his bed 
m the middle of the night, and take his clothes and 
shirts several miles off, to a woman, to have the " poi- 
sonous stuff" washed out of them. 

On one occasion, while driving out with his wife and 
children, he said that they had got along very com- 
fortably for some distance, when all at once the horse 
became frightened so that he could hardly hold him ; 
shortly, the horse became frightened again. The first 
time he said nothing to his wife ; the second time he 
spoke to her, and said : " Nancy, child, if you do not 
quit blowing this poison on me, the horse will run 
away and kill us and the children ; the horse has 
got the scent of this poison you are blowing on me, 
and is frightened." She answered, of course, that she 
had blown no poison on him; but it was impossible to 
turn his mind from the diseased bent it had taken. 

He would bore holes all over his house, through which 
to watch the motions of his wife. One day he sud- 
denly took his departure from home and went to Wil- 



470 THE FORUM. 

mington, for tlie purpose of consulting a fortune-teller 
as to the fidelity of his wife and legitimacy of the 
children. While there he called upon an eminent law- 
yer to draw up his will, disinheriting his children, as 
bastards, etc. It would be impossible, in this brief 
sketch, to follow him amid all the crooked, erratic paths 
of his disordered intellect. Each day his monomania 
took a deeper, deadlier hold upon him, until finally he 
frequently and publicly threatened to destroy the lives 
of his wife, Osborne, and some three or four others, to 
whom his suspicions had attached. 

About this time, Mrs. W. was cautioned by her friends 
to beware of her husband, but, as he had frequently 
threatened, without doing her any injury, she expressed 
herself not to be afraid of him. His conduct to her was 
very changeable; at one time he would say, "Nancy, I 
have told you, that you would some day tremble iii my 
presence, and I intend to kill you." Again, he would 
tell her, " I never shall hurt you, unless in self-defence." 
A few days before the homicide he was found shut up 
in his store, lying on the counter, with new muslins 
sewed together for a covering. His own clothes and 
bed linen, he said, were all sprinkled with poison. 
Being asked whether he had taken any nourishment, 
he replied, that he was afraid to take anything but 
hot water and crackers. A day or two after this, he 
wrote out a long account of his suspicions of his wife's 
infidelit}^, and referred fully to the contemplated crime. 



TRIAL OF JOHN WINDSOR. ^.'J^ 

The next cla}^ after he had written the letter, he loaded 
his gun and left the house, saying to a person that he 
met, " If you should hear of anything serious happen- 
ing at my place, don't disturb me." In a short time 
after this he returned home, went to the garret, where 
his wife was weaving, told, her that he had often said 
to her, that the time would come when she would 
tremble in his presence ; bid her prepare, as her time 
was short, and then drawing out a pistol, shot her mor- 
tally. He then went down stairs, and taking his gun 
in his hand, took his position at Ms door, and levelled 
the weapon at a man who was passing by. At this 
moment an acquaintance coming up, said, "Captain, 
what's the matter ?" He replied, " Where is the d — d 
son of a b — h ? I have shot my wife — go up stairs 
and see her, if you choose." At this moment it would 
appear that Windsor was in a state of high excitement. 
The man accordingly went up stairs, and found Mrs. 
Windsor lying upon the floor, very pale, with a child 
of some eighteen months sitting by her, crying. She 
at once requested to be carried down stairs ; said that 
her husband had shot her, and that she should die in 
a few minutes. Immediately before her death she 
sent for her husband, who at once went to her. She 
desii'ed to be lifted in her bed, and said to him, " Take 
care of your children ; I have but a few moments to 
live ; before God, and on my dying bed, they are yours, 
and I want you to do a father's part by them." She 



472 ' 'THE FORUM. 

then requested Mm to look at her wound; lie began to 
cry, and said he would not have done it for a thousand 
worlds, and then hurried out of the room. 

Mrs. Windsor died about three o'clock that afternoon. 
In her dying moments she expressed no anger or re- 
proach towards her husband, but begged that he should 
not be hurt or removed from the house. On his part, 
he exhibited deep grief for the act he had committed ; 
exclaimed that he had done a very wicked deed, and, as 
for his children, he hoped God would bless them, and 
declared that he would not hurt them for the world. 
Soon after the murder he took a half gill of laudanum, 
and then locked himself up in his store. AVhen found 
there, he was lying on the counter with a pistol in his 
hand, which, being requested to dehver up, he did so 
in the most passive manner. He then rolled up his 
sleeve, exhibited his bare arm, and remarked that, 
yesterday it was full and fleshy, but now most strangely 
shrunk; mentioning at the same time, something about 
that "cursed stuff." In a short time after the murder 
he seemed to forget all about it, and rarely, if ever, 
referred to his wife again, but his delusion concerning 
the poisonous stuff that was thrown upon him, still 
remained. He imagined now, that every one who ap- 
proached him was blowmg this poison upon him, and 
when visited in his ceU by the physician, who asked 
him how he had slept during the night, replied in a 
low whisper, " They put it in the water, and I could 



TRIAL OF JOHN WINDSOR. 473 

not close my eyes." He seemed particularly to sus- 
pect the sheriff and the keepers of the jail, and said 
that they were constantly " blowing on him." 

On his trial, which took place some two months after 
the commission of the murder, he was defended by Messrs. 
Robinson, Houston, James A. Bayard, and David Paul 
Brown. In its progress he appeared to take little or no 
interest, and as to the case and all its circumstances 
and consequences, seemed to be the most unconcerned 
man in the room. Not so, however, with regard to the 
subject of his hallucination — from the first moment he 
entered the court until he left it, he sat with a news- 
paper covering his head, to shield it from "the poison ;" 
watching every man who approached him with an insane 
quickness of eye, crouching under the fear of injury, 
and presenting really the most painful spectacle of a 
wrecked and ruined mind, that could possibly be 
imagined. 

Notwithstanding all the facts that have been related, 
and which so clearly proved his insanity, and that there 
was no evidence of any kind offered by the prosecution 
to oppose this proof, the jury in the case, after a long 
and tedious trial, returned a verdict against the pris- 
oner, of " GUILTY OF MURDER IN THE FIRST DEGREE !" The 

Court speedily proceeded to pronounce the sentence of 
the law, and the poor old man was condemned to be 
executed on the 17th day of September, 1851, show- 
ing, that while a plea of insanity, supported by such 

VOL. II. — 31 



474 THE FORUM. ' 

facts as this case presented, would, in enlightened com- 
munities, have assured an acquittal of the prisoner, 
yet, in this particular section, where the minds of the 
people were so much imbued with the grossest doubts 
and superstitions, it seemed to have been the weakest of 
all possible defences. The old man was, however, par- 
doned by the governor, but still lives in confinement, a 
monument of the wisdom, intelligence, mercy, and jus- 
tice of a Sussex county jury. 



INSANITY. 



A Mrs. D. of Pennsylvania, applied to counsel, 
in relation to a Deed of Trust, through which her sup- 
port was to be derived, she living, at the time, apart 
from her husband. She was a highly respectable 
woman — but, undoubtedly, demented. 

Some months after this application, the counsel being 
confined by sickness, was informed, by his servant, that 
there was a strange lady at the door in a carriage, who 
desired to know, whether he, (the counsel,) would con- 
sent to her going to the Pennsylvania Hospital — to 
which the counsel replied, " That he had no objection, 



f 



INSANITY. 475 

if she had none." From this time he heard no more 
upon the subject, until about six months after, when 
Mrs. D., who, it seems, was the lady in the carriage, 
called upon him, muffled up in a very extraordinary way, 
having just escaped from the Hospital. She complained 
bitterly of his having allowed her to go to the Hospital, 
asked his opinion as to the propriety of her visiting her 
friends in the country, and, after talking wildly for a 
considerable time, took her leave. 

What was the surprise of the counsel, about two 
months after, to receive a letter from her, stating that 
she had entirely recovered her health — expressing the 
hope, that the servants had conducted themselves well 
during her absence — that the house had been kept m 
good order — and concluding by saying, that she should 
return next week, and should be happy, if her husband 
would meet her half-way on her journey — she then 
signs her name, Mrs. B. 

Some days after this, while in the midst of an argu- 
ment in Court, Mr. B.'s servant called upon him, and 
informed him, " that a lady, calling herself Mrs. B., was 
at the house, with a large quantity of baggage, and had 
taken possession of the parlor." Mr. B. confided the 
case in which he was concerned to a professional friend, 
and at once proceeded to his home. There he found 
the lady, attired in a sort of wedding-dress ; she met 
him with the greatest tenderness, and begged " that he 
would not be disturbed — said that she had found the 



476 ' ' THE FORUM. 

house in a very good state — that the servants had been 
very attentive, and had given her her breakfast — and 
that every thing was right." " No, Madam," said the 
counsel, a good deal annoyed ; " every thing is not right ; 
it is not right, that I should be troubled with another 
man's wife, and one who is to me a comparative stran- 
ger. You have a worthy husband, who lives within a 
half-dozen squares of this place, why don't you go to your 
husband?" " Is it possible," says she, "that you deny 
being my husband !" The counsel, finding it useless to 
attempt to undeceive her, or to remove this illusion of 
mind, and his attendance being required elsewhere, 
called to a gentleman in his office, and requested him 
" to desire Mr. D., the husband, to come down at once, 
and take charge of his wife." 

Immediately upon this direction being given, the poor 
woman at once exclaimed — " Is it possible that you 
would send for him? that you will give me up to him?" 
The counsel replied : " It is not only possible, but it 
is certain." Whereupon, the whole demeanour of the 
woman changed — she exhibited the greatest trepidation 
— begged " that a coach might be sent for, to remove 
her and her baggage." This was accordingly done, and, 
very much to the rehef of the counsel, she departed. 
She has never been seen since, with the exception of 
once, while passing along the street in a carriage, she en- 
countered the counsel, when, folding her arms and fixing 
her eyes upon him, she manifested the utmost scorn 



REASON AND METHOD IN MADNESS. 477 

and contempt for one who, she no doubt thought, and 
will continue to think, had treated her with the most 
unaccountable neglect and cruelty. 



REASON AND METHOD IN MADNESS. 

Wiley Williams, a gentleman from the South, had 
been about a year in the Blockley Asylum. Having 
made his escape, he wrote to counsel, wishing to know 
what legal redress could be obtained for his ruined 
prospects, etc. In his letter he thus reasons : "If I 
cannot obtain redress, I will shoot Dr. Earkbride for 
having imprisoned me ; and should I be tried for mur- 
der, my defence will be this : If I am mad, as you say, 
I cannot commit an offence — if I am not mad, you de- 
serve death for having deprived me of liberty, and 
blighted my hopes." Not receiving an answer, he car- 
ried out his threats. He perched himself in a tree in 
the garden of the Asylum, and as Dr. Kirkbride passed, 
shot him from behind ; but happily the contents of the 
gun lodged chiefly in the rim of the doctor's hat, and 
the result was comparatively harmless. 

Williams was afterwards tried for an assault and bat- 
tery, with intent to kill ; but his insanity being esta- 
blished, he was acquitted, and ordered into strict custody 



^-^g THE FORUM. 

in the penitentiary by the Court. There he shortly 
afterwards died, having never been restored to reason.* 



THE CRAPT OF INSANITY- 

M.j HAVING written a letter from the Asylum, made 
up of patches of Latin, Greek, French and Ger- 
man, and manifesting most clearly a disordered mind, 
upon escaping from his confinement, desired counsel to 
institute an action for false imprisonment, against the 
Managers. " I shall do no such thing," said the law- 
yer, (handing him his letter.) " Look at that, and tell 
me whether a sane man ever wrote such a letter." 
Upon which, bursting into a laugh, the madman said, 
" That indeed does look as if I were insane ; but I 
wrote it purposely in that way, because I knew if it 
had been reasonable, and the Managers had opened 
it, as they always do, they never would have allowed 
it to reach its address." 

* Upon a defendant's being acquitted on the ground of insanity, the 
Court is authorized by the act of June, 1836, (Stroud & Brightly's Digest, 
page 556,) to order the defendant to be kept in strict custody, so long as 
he shall continue to be of unsound mind. 



WALKING ON THE WATER. 4.^9 

WALKING ON THE WATER. 

The wife of Mr. H. called upon counsel to ob- 
tain a commission of lunacy against her husband, who 
imagined himself to be the Apostle Peter. This was 
done. About six months after, she applied to the same 
counsel to have the commission rescinded, on the ground 
that the lunatic had recovered his reason. In order 
that this might be done, it was necessary that testimony 
should be taken before an examiner, to satisfy the 
Court of the truth of this allegation. 

Upon the examination, it was proved that the insane 
man had been some time in the Hospital, and was 
deemed incurable, when the wife asked permission 
of the Managers to take him a riding in a carriage. 
This request, as he was not violent, was granted. 
When they reached Frankford, however, not guard- 
ing him sufficiently, he made his escape, and being 
found, after long search, it appeared that, governed by 
his hallucination, he had rushed to a neighboring mill- 
dam, (ten feet deep,) to make the experiment of ivalk- 
ing on the water. He plunged in, and, though utterly 
unable to swim, he succeeded, through faith, in reach- 
ing the opposite bank ; and whether from the effect of 
the cold bath, or from the practical proof of the diffi- 
culty of the undertaking, he was from that moment 
entirely cured of his apostolic and aquatic pretensions, 
and restored to sanity. 



# 



^gQ THE FORFM.^ 

DOrBLE INSANITY. 

We have all become familiar with the veritable story 
of a young artist, who, having been engaged in one of 
the lunatic asylums of England, in taking the portrait 
of an insane patient, became insane himself, during the 
progress of the work. We have also read, with inter- 
est, in Warren's Diary of a Physician, the case of 
the Baeonet's Bride""" — in which. Lord Harleigh led 
the physician to the belief that his wife was hopelessly 
insane, while he himself was little short of a raving ma- 
niac. But a more extraordinary case, was that of Mr. 
and Mrs. D., in which counsel — physician — clergy- 
man — and, in short, every one connected with or con- 
cerned in the case, were involved in error. The parties 
were in the highest social position in life — and the lady 
of uncommon personal attractions. For a time, to use 
a common phrase, they literally rolled in wealth, and 
became " the observed of all observers." They had but 
one child, a little girl about two years old, to whom, 
it need scarcely be said, they were devotedly attached. 

The husband was deeply concerned in very extensive 
mining companies in Mexico, and had been absent for 
some months. Upon his return, he launched out into 
every possible extravagance — purchased a splendid 

* Diary of a Pliysician, vol. III., p. 112. By Sir Samuel Warren ; the 
author of Ten Thousand a Year, and at present Attorney General of Eng- 
land. 



DOUBLE INSANITY. 4g;|_ 

house — filled it with the most gorgeous furniture — 
and sported jewelry upon his person, that was al- 
most a fortune in itself. By his account, his wealth 
was much more abundant than his outlay; and, strange 
to say, the gentlemen who were connected with him 
in his great mining operations, and who were the most 
prudent and sagacious of our citizens, reposed the most 
unlimited confidence in every thing he said and did, 
and imagined that he had secured for them " the 
whole world in a string." The wardrobe, or parapher- 
naha of the wife, was of the utmost magnificence ; and, 
judging from externals, there never could have been 
greater harmony or prosperity in a family. 

In this state of things, I was applied to by the wife, 
and informed "that her husband was deranged — that 
she had left her home with her child, and taken up her 
residence in one of the principal hotels in the cit}^ — 
and that her husband had accused lier of being insane, 
and had written to her father, a man of high position in 
a neighboring State, to come on and take charge of 
her." In addition to this, she mentioned, " that the 
husband was determined to obtain the child, and had 
applied to Mr. John Sergeant, in order to procure a 
habeas corpus" 

Several conferences took place between Mr. S. and 
myself. Mr. S. was satisfied with the sanity of his 
client, while I had no doubt, making proper allowance 
for the excitement of a feeble and delicate woman, of the 



482 THE FORUM. ; - 

sanity of mine. In the midst of the negotiation between 
the parties, D. contrived to get possession of the child, 
and remove it to the house of his friend, Dr. Harlan. 

The terror and agony of the mother can scarcely he 
conceived. I was sent for immediately to her hotel, 
where I found her in the deepest distress, with her phy- 
sician, the Rev. J. Breckenridge her clergyman, and a 
number of other sympathizing friends. She also ex- 
hibited to me the certificates of Dr. Chapman, Dr. De- 
wees, and other emment medical men, who had known 
her for some years, and who expressed their entire 
confidence ui the soundness of her mind, and her entire 
competency to take charge of her infant child : they 
also expressed the opinion of her husband's insanity 
and unfitness. 

On the other hand, certificates, it seems, had been 
procured of the sanity of the husband, and of the insa- 
nity and incompetency of the ivife. In this condition of 
things, as has been said, the husband had removed the 
child — the mother was in a storm of maternal grief — 
to talk to her of a haheas coqms was a folly — the 
delay of an hour was not to be Hstened to, much less 
the necessary delays of the law. I endeavoured to 
console her, but in vain. I told her she could not be 
better protected than she was — with Dr. Harris to take 
charge of her health — myself to protect her legal rights 
and interests — and Dr. Breckenridge to administer, 
what was above all, spiritual consolation. 



DOUBLE INSANITY. 483 

It is in vain to attempt to reason with a mother when 
robbed of her child, and nothing would satisfy her, but 
that the child should be produced. To relieve her anxi- 
ety, I immediately went to the doctor's house, to which 
the infant had been carried, and ascertained that it was 
still there. I demanded its immediate restoration to the 
mother. Both the father and the doctor maintained that 
the mother was insane, and unfit to take charge of the 
child, or herself This was denied by me, upon the autho- 
rity referred to, and I more than intimated, that the men- 
tal infirmity was with the father. However, finding that 
all this would come to nothing, I closed the conversa- 
tion, by stating " that, although unwilling to cause any 
exposure of these lamentable domestic difficulties, as 
they admitted the child to be in their possession, I 
would issue a habeas corpus forthwith; and, if the 
child were not delivered to the mother in less than one 
hour, the writ should be served by an appropriate 
of&cer of the law, and the child would be taken by force 
of judicial authority. This brought the matter to a 
close — a carriage was called, and forthwith the little 
innocent was reconveyed to the arms of its afflicted 
mother — and here the curtain fell upon this act of the 
drama. 

A few days after the occurrences thus referred to, the 
father of Mrs. D. arrived — a meeting of all the parties 
and counsel, took place. It was finally agreed, that 
the husband would settle fifteen hundred dollars per 



484 THE FORUM. 

annum upon tlie wife — that the father should be the 
trustee — and that the child should remain with its mo- 
ther. This arrangement having been completed, the 
wife returned to the place of her birth, with her aged 
and afflicted parent. 

Nearly a year passed over, and I heard nothing further 
of any of the parties : when, towards the close of that 
time — having stepped into the Philadelphia Athenseum 
— I there saw a man seated at one of the tables, with 
towering white ostrich feathers stuck into the crown of 
his hat, and literally covered with golden chains. This 
was a singular display, and I took an opportunity to in- 
spect the personage somewhat more closely — when I dis- 
covered it was my quondam acquaintance, D. I spoke 
to the librarian upon the subject, and from him learned, 
" that the stranger had been in the habit of visiting 
the room, often being followed by groups of astonished 
boys, and that he laboured under a most extraordinary 
hallucination. He stated, that he had been to Mexico, 
where he had been attacked and robbed by the gueril- 
las — he had received thirteen blows in the side from 
their stilettos — that his life was only saved, from his 
carrying the manuscript history of his travels around 
his body, which prevented any fatal effects from the 
assault — and that he was now on liis way to China, for 
the purpose of enlisting a hundred thousand Chinese, 
with whom he intended to return to Mexico, drive all 
the natives out of the country, and repopulate that 



VON VLEIT'S CASE. 485 

region with these men, ^ who were,' he said, ^ an honest, 
industrious, and ingenious people, and would, in the 
course of time, be an ornament and a blessing to Ame- 
rica.' " From that moment, I have never seen him. 

To turn now to the wife : For a long time she lived 
secluded from all society, and wrote often to her friends 
complaining of her hapless condition. Finally it was 
learnt from an authentic source, that she escaped from, or 
left her father's house, in the depth of winter, at night, 
and wrapped up in blankets, like a wandering savage, had 
betaken herself alone to the woods some miles off, where 
she remained without any sustenance or protection for 
three entire days. When found, she was almost dead 
from exposure and famine, and, for many months after, 
there was but little hope of her recovery. She, too, 
proved to he hopelessly deranged. 

Neither of these parties survives — and their melan- 
choly history serves only to show, that the imagma- 
tions of men can conjure up no fictions, that are not 
surpassed by the sad kealities of Life. 



YQN YLEIT'S CASE. 

In the case of The Commomvecdth v. Von Vleit, (in 
1842,) which has been referred to in this volume of 
The Forum,* a new trial having been granted, on the 
ground of after-discovered testimony, upon a subse- 

* Page 34, et seq. 



486 '^^^ FORUM. 

quent trial tlie defendant was acquitted. An action 
being afterwards brought against the prosecutrix for 
malicious prosecution, a commission was issued to 
England, in order to establish the ownership of the 
defendant in the gold, which he was charged with 
having stolen. The commission was returned on the 
26th of May, 1843, and taken from the post-office by 
David Paul Brown at half-past six o'clock, in the eve- 
ning of the same day, and an indorsement made accord- 
ingly on the envelope. It so happened that on that 
precise day, Moore, the alleged accomplice and witness 
against Yon Yleit, escaped from the prison, where he 
had been kept in order to secure his testimony. 

When the case of conspiracy came on to be heard 
before referees, two witnesses, Behm and Tallmadge, 
were called upon by the defendant. They attempted to 
prove — knowing nothing of the return of the commis- 
sion — that, on that very day they saw Von Vleit and 
Moore together, at six o'clock in the afternoon, stand- 
ing under a lamp-post, in Sixth street above Market ; 
and that they overheard a conversation, which had re- 
lation to a reward being paid to Moore, provided he 
would run away, which resulted in Moore's departure. 
This was fatal (if true,) to the plaintiff's case, as the 
entire cause rested upon an alleged connection between 
the prosecutrix and Moore. 

The commission was produced — ^the exact time fixed 
by the indorsement sworn to by two witnesses, who 



VON VLEIT'S CASE. 4g7 

were present — the presence of tlie plaintiff at the time, 
also established — the whole of the wicked conspiracy 
overturned, and a verdict given against the defendant, 
for three thousand dollars. 

Nor did this apparent providential interference end 
here — the defendant, Mrs. H., appealed. In order 
that her father might become her bail, she transferred 
to him her estate, valued at upwards of ten thousand 
dollars. Shortly after this appeal and transfer, the 
father, holding the title, took sick, and was supposed 
to be in a dying condition. Had he died, the property, 
as it vested in him in fee, would have passed to his 
other children, in common with the defendant, or by 
wiU, she might have been entirely excluded. He refused 
to reconvey, unless he was released from the liability as 
bail, so that Mrs. H. was compelled to make a satisfac- 
tory arrangement with the plaintiff, in order that his 
judgment upon the record might be removed. The 
tables were completely turned upon the original prose- 
cutrix ; she prosecuted, in order to obtain three thou- 
sand dollars ; her prosecution eventually failed, and 
the defendant's money was returned to him. He after- 
wards brought an action for a malicious prosecution, 
and recovered three thousand dollars from his adver- 
sary, thus verifying Shakspeare's doctrine, that — 

" Even-tianded justice 
Eeturns tlie ingredients of our poisoned chalice 
To our own lips." 



488 ' '^^'^ FORUM. 



JULIA MACBETH. 

In 1820, just after my aclmissionj Mr. McI ny, 

who liad been a member of the bar for twenty years — 
a man of great difiidence, thougli of great worth and 
learnmg, and of the kindest and most philanthropic 
heart — called upon me, in the greatest excitement, 
and informed me, that a most interesting and beau- 
tiful child was just arraigned, together with her 
father and mother, for larceny, the first for stealing, 
and the latter two for receiving, a considerable sum 
of money — a portion of the money, received of course, 
by the mother, in the absence of the husband, as other- 
wise no charge could have been legally sustained 
against he?\ " Well, Sh," said I, " what do you wish 
me to do ? — why did you not take up the defence 
for the unfortunate group ?" " I wish you to do it," 
said he ; "I attempted saying a word or two in their 
behalf, and I blundered even in that ; you will obhge 
me by going down to the Sessions — the case is to be 
tried this afternoon before Judge Rush." Of course there 
could be no refusal, and I accompanied him to the court. 

The family exhibited, to be sure, a sad spectacle. 
The parents appeared to be persons in an humble 
position in life, and the child, who was a charming 
little creature, sat with them in the dock, apparently 
unconscious of all peril, either to them or herself. 



JULIA MACBETH. 439 

In passing her, in her sportiveness she let her mit- 
ten fall over the railing, and I picked it up and re- 
turned it to her. Judge Rush — with whom I may 
be allowed to say, I was in some favor, hut who was 
inchned to be suspicious — immediately called me to 
him, and inquired what it was. I told him it was 
the child's glove. " 0, well," said he, " I thought it 
was a ^ purse f " This furnished some opening for fur- 
ther remark, and I asked him, if he seriously thought 
of allowing that child, scarcely ten years of age, to be 
tried upon such a charge. The old gentleman's fea- 
tures softened at once, for, with all his external rough- 
ness, he was a man of lofty and tender feeling, and 
he rephed : "We will think of it — we will think of it, 
Mr. Brown." A few minutes afterwards, turning to 
Charles S. Coxe, (afterwards Judge Coxe, of the Dis- 
trict Court,) a humane man, who was at that time the 
prosecuting attorney, the Judge suggested to him the 
propriety of entering a non pros, upon the bill against 
the child, which was immediately done. From that 
moment I felt entirely secure, as regarded the fate of the 
parents ; as the law, as it stood then, would permit no 
conviction of receivers, without the previous conviction 
of the principal felon. The law, however, has been 
since altered in that respect.* 

* In April, 1825, at the instance of Recorder Reed, I procured an Act 
of Assembly to be passed providing for the prosecution of receivers, 
although the principal felons were not before convicted. This was designed 

VOL. II.— 32 



THE FORUM. 



The cMld being discharged, the parents were put 
upon their trial. 

The very first witness called was proceeding to state 
the particulars of the larceny by the daughter; he was 
stopped at once, on three grounds — first, That the child 
was not upon her trial; secondly, That her words, or 
actions, in the absence of her parents, could not be allow- 
ed to affect their rights ; and thirdly. That if they proved 
her guilt, without a recorded conviction, they still could 
not punish the parents. The Judge, who was an excel- 
lent lawyer, saw it was impossible that the case could 
proceed, and a verdict of acquittal at once passed for 
the defendants ; at Avhich, perhaps, no one rejoiced more 
than the Judge himself. He did not show it, however, 
but sternly ordered the father to stand up. "Andrew 
Macbeth," said he, "you and your wife have been mer- 
cifully dealt with, and I dismiss you — ^in the language 
of the best of books, ' go now, and sin no more.' " 



PEINCESS CARRABOO. 

In early professional life, upon entering court, I was 
amazed at beholding in the bar, a very lovely looking 
woman, attired in quite a costly ball-room dress, with 
appropriate jewelry. Her thick, black, curling hair 

to protect the young and unwary, who may have been employed as agents 
to accomplish the crimes of principals. — Tide Stroud & Brightly' s Di- 
gest^ p. 645, sect. 27. 



PRINCESS CARRABOO. 49X 

was somewhat dishevelled, and hung carelessly over 
her shoulders, and perhaps thereby added to the in- 
terest of the scene. 

Upon inquiring to what this extraordinary state of 
things was attributable, I was informed that this young 
lady passed by the name of the Princess Carraboo ; 
that she spoke many languages, but none very intel- 
ligibly ; and, in short, she had been arrested at a dance 
upon a charge of larceny. 

This was thkty years ago. Like most young lawyers, 
not being overstocked with business, being attract- 
ed by the novelty of the occasion, and finding that the 
fair dame had no one to defend her, I volunteered in 
her behalf. The case was rather a difficult one. The 
prosecutor and all the witnesses were very much en- 
raged against the prisoner. They stated that she had 
borrowed from them all the articles of dress and jewelry 
that she wore. That they were borrowed but for a 
short time, and under various false pretences ; and that 
she had afterwards broken all her engagements, and 
appropriated them to herself. She had no testimony. 
The prosecuting counsel pressed the case very inge- 
niously and ably, the effort being, of course, to show 
that she had obtained the articles animus furandi, or 
with a felonious intent, and that she was therefore guilty 
of what is commonly called constructive larceny. 

This is a kind of case that it is rather troublesome to 
meet — it leaves so much to the loose imagination of 



492 THE FORUM. 

a jury, called upon as they are to ascertain motives 
from facts whicli at the best are often very equivocal. 
If she had been an ugly old woman the case would pro- 
bably have been lost; or if the witnesses against her 
had been prepossessing in their persons and deport- 
ment, it might have been lost as it was ; but in both 
those respects, if in no other, the prisoner had greatly 
the advantage of her adversaries. My speech in her 
behalf was no great affair ; meddling very little with 
either the law or the reason of the case, but directing 
the attention of the Court and jury to the forlorn 
and desolate condition of the defendant — to her youth 
— her pardonable fondness for finery — and the impro- 
bability while thus actuated by motives of harmless 
enjoyment, that she should have contemplated the 
commission of a crime that must result in converting 
her pride into shame — her joy into grief. 

The jury listened attentively and sympathetically, 
(for there were fathers among them,) and the de- 
fendant wept in such admirable keeping with the 
tenor of the speech, that she was promptly and trium- 
phantly acquitted. I never saw her before, and have 
never seen her since ; but she maintained her fasliion- 
able and graceful character to the last ; for when the jury 
returned their verdict of " not guilty," she issued from 
the dock, and making a most becoming courtesy to 
the Court, retired amidst the applause of the surround- 
ing multitude. 



UNITED STATES V. . 493 

THE UNITED STATES Y. • BEPORE JUDGE EANE. 

An interesting young man was indicted in the Circuit 
Court of tlie United States, for the embezzlement of 
a letter, and the money which it contained, which letter 
was directed to Mr. Scott, a well known editor of this 
city. 

The young man had borne an unblemished moral 
character, although he was supposed to be of feeble 
intellect. He was attended during the trial by his 
aged parents — and it was a truly pitiable group. 
There was but one important witness against him, and 
that was a lad of about fifteen years of age. He swore 
distinctly that the defendant gave him a written order 
upon the post-office to deliver to the bearer Mr. Scott's 
letters; that under that order he (the witness) ob- 
tained the letters, and was arrested with them in his 
possession. The order was produced, and conformed 
to the above statement. A member of the bar^ who 
witnessed the trial, and felt great interest in it, sug- 
gested the foUowing inquiry to the defendant's counsel : 

Counsel. — Cross-examination of the witness. — " Can 
you read?" 

WUness.—''YQ^:' 

Counsel. — " Will you read that order ?" 

Witness. — " Certainly." (And he read it.) 

Counsel. — " Can you write ?" 

Witness. — " Yes." 



494 ■ THE FORUM. 

Counsel. — " Will you copy the order T 
The order was accordingly copied, and upon the two 
papers being handed to the Court and jury, it became 
manifest that the witness was the offender ; that he 
had written the original order, and upon being arrested, 
he had charged an innocent young man that he himself 
might escape condign punishment. 



CASE OF COMMONWEALTH V. EIISSELL. 

In the year 1830, the families of Mr. W., and Mr. 
R., between whom there was a deadly feud, lived 
in adjoining houses, in Lombard Street, Philadelphia. 
A delicate-looking servant-girl, in the employment of 
the former, charged Mr. R. with an assault and bat- 
tery upon her person, with intent to kill. The charge 
rested almost entirely upon the oath of the prosecu- 
trix. She swore " that she saw the defendant throw 
a brick at her, on a given day, from the adjoining yard, 
while she stood on the back steps of the house of her 
employer." She stated " that the brick struck her in 
the breast — that, from that time, she had been subject 
to spitting of blood, and fainting-fits." During her 
examination, she several times apparently fainted, and 
was led out of Court ; and, of course, every time she 
fainted, the hopes of the defence fainted : no cross-ex- 
amination could be available, and the defendant's coun- 



COMMONWEALTH V. RUSSELL. 495 

sel got rid of lier as soon as possible, to avoid any in- 
creased dramatic effect. 

The next witness called was the doctor. He swore 
to the spitting of blood — feebleness of frame — fear 
of consequences, and all that — but wonderful to relate, 
although he examined her breast, he never discovered 
any external injury. There came up the inquiry, 
"how such consequences could have been produced, 
without any apparent cause ?" — the physician met all 
these questions, by fine-spun theories and remote pos- 
sibilities. 

The defence rested upon an alleged alibi. It was 
proved that the defendant was six miles off at the time 
of the alleged assault — it was shown that his name 
was attached to an oath taken at Germantown, dated 
that very day — the magistrate before whom it was 
taken, swore to the exact hour, upon which the girl 
had fixed for the perpetration of the outrage ; still, in 
defiance of all this — the blood-spitting — and the simu- 
lated fits — and the exquisite acting throughout of the 
complainant — overbore all resistance, and the defend- 
ant was convicted ; and, though a decent man, with a 
large family, was sentenced to a heavy fine, and six or 
twelve months' imprisonment. 

Now, mark the sequel, and profit by it : While the 
defendant was thus incarcerated, the prosecutrix be- 
came dangerously sick, and conscience-stricken. She 
sent for the counsel of the prisoner, to whom she volun- 



^gg THE FORUM. 

tarily confessed, " that she knew of the fend between 
the families, and desired to gratify her employer's re- 
venge against his next-door neighbor — she therefore 
invented the whole story. When the doctor was sent 
for, as she could show no external bruises to support 
her story, she pricked her gums with needles to pro- 
duce blood, and thus deceived the physician and the 
family; and, by feigned debility for weeks, she not only 
escaped labour, but imparted probabihty to her nefa- 
rious charge." Poor R., at the time of this dis- 
closure, had passed some months in confinement, but, 
upon a statement of these facts fully verified to the 
Executive, a pardon was granted, and he was restored 
to his suffering family. He is now dead — but this 
explanation is due to his memory ; and is not without 
instruction to the profession and the community. 



• ■ DEFEATING A ROGUE. 

There is an anecdote related of Mr. Curran, which, 
although not strictly embraced by our plan, is so little 
known, and so remarkable for its manifestation of great 
professional ingenuity in defeating fraud, that it is well 
worthy of being known, and remembered. 

Early in Curran's professional career, a young Irish- 
man called upon him, stating "that he was destitute 



DEFEATING A ROGUE. 497 

of means, but had been recommended by a friend to 
obtain Mr. Curran's advice in a very distressing case." 
The young man, it seems, had, by his hard earnings, 
acquired and laid by a sum of one hundred pounds, 
v^ith which he had come to town to purchase a copy- 
hold estate in a small farm. Being an utter stranger, 
and unwilling to carry the money about him, he de- 
posited it with his innkeeper for safety,' during the 
pendency of his negotiation. Upon calling for the 
money, however, the landlord of the inn denied having 
received it, and there was no witness to prove the de- 
posit. Such was the case as related to the counsel. 
Mr. Curran's feehngs were deeply interested for the 
unhappy stranger, and he requested him to call the next 
morning ; and, in the mean time, as it was a case of 
great difficulty, promised he would give it his best re- 
flection. Next morning, accordingly, the chent called. 
Mr. Curran asked him "if he could raise another 
hundred pounds." The client told him " he might raise 
a hundred pounds of potatoes, but, as to money, he 
had none." " Well, but," said Curran, " you are an 
honest fellow, and I think the gentleman who sent you 
to me, would probably lend you the money for a few 
days — try and get it." The client did try, and got it, 
and brought it to the lawyer. " Now," said Curran, 
" take this money to the tavern-keeper, and deposit it 
with him — but be certain to take a witness with you 
this time." " My G — d !" said the countryman, "that 



498 ' '^^^ FORUM. 

will neA^er do ; I have lost all I have already, and if I 
am to lose, as I shall, the money I have borrowed, it 
never can be paid, and I shall be for ever ruined." 
"Do as I tell you," said Curran, " and then come back 
to me." This was all done exactly according to instruc- 
tion. "Now," said Curran, "call on the landlord again, 
and ask him to return you the last hundred pounds — but 
take no witness with you — he will pay you, for he 
knows you can prove the deposit." So it turned oui-^ 
the money was paid — and the countryman again re- 
turned delighted to his counsel. " It is all right and 
sure," said Curran : " Now take your witness, and de- 
mand the hundred pounds that you left with him, in 
the presence of that witness. The necessity for proof 
has now changed sides." Upon making the second de- 
mand, the faithless landlord discovered that his dis- 
honest purpose had been defeated, and surrendered his 
ill-gotten spoil — and thus Justice triumphed. Mr. 
Curran often said, " that he never experienced greater 
happiness, than in thus aiding an honest man, and de- 
feating a rogue." -. ■• 



GEORGE G- 



A MAN of aged and respectable Scottish parentage, 
in the year , was indicted for the murder of 



GEORGE G . 499 

. The circumstances that gave rise 

to his arrest and indictment, were these. George had 
been a wild young man, and had for many years with- 
drawn from his parents' house, and lived with a woman 
whom he called his housekeeper, in the southern part 
of the city of Philadelphia. How he derived his subsist- 
ence was not very well understood, but there he contriv- 
ed to live; and a companion of his, somewhat older 
than himself, occupied an up-stairs room in the house. 
For some time their harmony was undisturbed. One 
evening, however, a short time before the arrest of 
George, while at the supper-table, some shght differ- 
ence took place between them, accompanied with mu- 
tual threats — and the next day the companion was 
missing. Either from rumor, or some more direct and 
reliable information, the officers of justice were in- 
duced to search the dwelling, and upon doing so, dis- 
covered that there were traces of blood along the nar- 
row stairway from the garret, in which it was ascer- 
tained the missing man had been accustomed to sleep, 
down into the cellar. The cellar was pretty well stock- 
ed with wood, and the body at that time was not dis- 
covered. Still, the presumption of G.'s guilt was suffi- 
ciently strong, as it was well known there were but 
these three persons in the house; and, after a brief 
hearing, G. was committed for trial, and the housekeeper 
was detained in prison as a State's witness. 

It was at this time that I was called upon by the 



5QQ THE FORUM. 

unhappy parents of the prisoner to take charge of his 
defence ; and in order thereto, I waited upon him at his 
cell. From early experience I had long resolved never 
to put the direct question as to guilt or innocence to a 
prisoner in these circumstances ; and, indeed, in this 
case it would have been useless, as, from the first mo- 
ment of my seeing him, he asseverated most solemnly 
his entire innocence. When I spoke to him (as he 
admitted that he was at home on the night in ques- 
tion,) of the impossibility of such an occurrence having 
taken place without his participation or knowledge, he 
answered me by saying that " the house may have been 
entered by some enemy of the deceased, as the fasten- 
ings were not secure ;" and also urged the unreason- 
ableness of the suspicion that he should murder his 
friend — the absence of cause, etc. I listened to him, 
and, as is my usage, carefully observed his manner, 
and fixed my eye upon his countenance while he was 
engaged in rehearsing the facts connected with this 
dark story. In doing this, I was particularly struck 
with one thing in his demeanor — his eye seemed always 
to avoid mine, and when they happened to meet, there 
was a shrinking or twitching in his glance, that I have 
never observed before or since ; and this always occur- 
red at our interviews. Still, although this left an un- 
favorable impression upon my mind, it was not a fixed 
impression. There is always a strange expression in 
the eye of an individual about to be tried for his life. 



GEOEGE G . 5Q]_ 

It is difficult to distinguish between the effects of fear 
or shame, and guilt : under the influence of all, the 
pupil of the eye is dilated, and it has been observed 
to be so in several cases, where, upon trial, the inno- 
cence of the accused has been clearly estabHshed. 
Nevertheless, the expression of the eye of the prisoner 
manifested, if not a consciousness of the specific crime, 
an indication of " some crime unwhipped of justice," 
that took from me the reliance that I should otherwise 
have felt upon his smcerity and truth. The trial came 
on ; but, in the meantime, I should say, the police dis- 
covered the body of the murdered man under the wood- 
pile in the cellar. They also found a bloody axe — the 
blade of which, when applied to the wound on the skull 
of the deceased, corresponded with it exactly. They 
further ascertained that G. had borrowed the axe of a 
neighbor on the night preceding the homicide; and, 
moreover, and stronger than all, they found the pocket- 
knife of Gr., (proved by his housekeeper,) which was 
marked with blood, and appeared to have been used in 
inflicting some of the lesser wounds about the throat 
of the murdered man. Most of these facts were de- 
rived from the housekeeper, but they were strongly 
corroborated by collateral testimony. The trial occu- 
pied nearly two days. Mr. Dallas conducted the pro- 
secution with great ability. The defence, which was 
nearly desperate, consisted mainly of an effort to dis- 
credit the housekeeper, by showing that she had had 



502 THE FORUM. 

a quarrel with G., and furtlier, by maintaining that if 
this occurrence could have taken place without her 
hearing it, it might also have taken place without the 
knowledge of G. That it possibly may have been done 
by others than an inmate of the house ; and that an in- 
nocent man ought not to be convicted upon presump- 
tion, merely because he could not show how or by whom 
the offence might have been perpetrated. 

When the argument — such as it was — was finished, 
G. turned to me and said, with great apparent compo- 
sure, but much to my surprise — " I shall be acquitted 
in ten minutes." To which I replied : " I should re- 
joice if it should be so, but my impression is, that you 
will be convicted in half the time." And so it turned 
out. 

Sentence of death was pronounced, and the warrant 
of the Governor for the execution, speedily followed. 

About a week before the fatal day, late at night, a 
tall, aged woman, with dishevelled hair, and resembling 
the picture which Scott has drawn of Noma of the 
Fitful Head, entered my office, and the first word she 
uttered was, " I am G.'s mother." I could have con- 
fronted G.'s ghost, but to meet an aged mother in such 
circumstances, was almost beyond endurance. As to 
consoling or comforting her, that was out of the ques- 
tion; I condoled with her — spoke of everything having 
been done for her son that was possible — that he might 
still repent and die happy — and that, if so, as she had 



GEORGE G .' 503 

already nearly reached the limit of life — she would 
not be long separated from him. But all this availed 
nothing, and she interrupted me, by exclaiming, in a 
transport of agony — referring to the loss of her chil- 
dren — "Jamie has gone, and Effie has gone, and if 
they take Geordie from me, I shall be Kke the patri- 
arch Jacob — ^wherewith shall I be comforted ?" 

I was silent for a time — indeed, what could I say — 
who can argue with a mother's grief? At last, heaving 
a deep groan, she exclaimed: "And yet it is not so 
much his death as the manner of his death, that strikes 
me with the greatest horror — no one of my kith or kin 
ever died upon a gallows" — and here she stretched her 
thin figure to its full height, as from a struggle between 
pride and maternal feeling — " Can he die no other way — 
I pray for his death any other way, if he must die — any 
way but that." I replied, the law knew no other way, 
and I regretted to say, that there was no hope even 
of a respite. " Then," said she, " will you see hhn? — 
tell him of his condition, and bear my last blessing to 
him ; no one can refuse such a request to a mother." 
I promised to comply with her wishes ; and totteruag 
with age and grief, she withdrew. 

Next day I was ushered into his wretched cell; but a 
little week was the allotted interval between him and a 
felon's death. As the heavy gratings were removed, 
and I entered, I saw, in the twilight of his apartment, 
G., surrounded by a number of clergymen, but appa- 



504 ' THE FORUM. 

rentljj instead of listening to their ghostly comfort, lie 
was vociferously and positively asserting his entire in- 
nocence of the offence of which he had heen convicted 
— this was shocking. 

I passed through the ranks of these reverend gen- 
tlemen, (who, of course, were unable to answer him, as 
they knew but little of the case,) and said to him : " I 
expected to find you in a different temper — you may 
deceive your fellow men, but there is One above, you 
cannot deceive. Your business is. to prepare for your 
fixed and final doom; it is not too late for you to repent. 
You at least have some advantage over other men — ^they 
know, it is true, that they are to die, but you know 
your exact time, and you should address yourself to 
preparation at once." " Mr. Brown," said he, " I am 
innocent." " Beware," was the reply, " how you trifle 
with your salvation in your last moments ; do not add 
to your offences, by maintainmg what is untrue. You 
admit you were in the house on the night of the death 
— you admit that you borrowed the axe on that night 
— ^you admit that the bloody knife was yours. Now, 
if you can account for all these, consistently with your 
innocence, I will take your place." 

Bringing these matters in their combined influence 
to bear upon him, seemed to destroy his assumed con- 
fidence, and he exclaimed : " Is there, then, no hope ?" 
"Much hope," was the answer, "but none on this side 
of the grave — ^your fate is inevitable, and you should 



GEORGE G- 



505 

meet it as a man, and as a Christian." I then commu- 
nicated to him, as kindly as I could, the blessing of his 
mother, and bade him a sorrowful and last farewell. 
He never mounted the gallows. He no doubt had de- 
luded himself with the hope of pardon, and with a view 
thereto, had persevered in the allegation of innocence ; 
but when informed by his counsel that his case was hope- 
less, the whole man gave way, and he continued to be- 
come weaker and weaker, until a few days before the 
time fixed for his execution — when he died. 

There is only one matter in addition to this state- 
ment that it is proper should be mentioned, as explana- 
tory of the peculiarity of his conduct at our first in- 
terview : — Shortly after his death, the housekeeper, to 
whom I have referred, called upon me, in great sad- 
ness, and expressed a desire to remove from my mind 
any unfavorable impressions of her, that it may have 
received. The interview led to the following brief 
colloquy : — 

Witness. — "You seemed, upon the trial, to think 
that I entertained malice towards G., and that I 
uttered falsehoods, in order to convict him." 

Counsel — " I said what I thought of you, and I am 
sorry, if I have done you injustice." 

Witness. — "I was compelled to testify — I would 
have screened him if I could, without perjuring my- 
self; I had screened him before, when I knew he had 
been guilty of crimes, and I will now give you a proof, 
VOL. II. — 33 



506 - THE FORUM. 

in one instance, at least. Had you a very valuable 
cloak taken from your office, about a month before tbis 
murder ?" 

Counsel. — "I had — but what has that to do with 
this subject ?" 

Witness. — " That cloak was stolen by G., and when 
he brought it home he informed me where he had ob- 
tained it." 

This explanation gave me at once to understand 
what had previously been unaccountable. No doubt, 
when I called upon him in prison, and fixed an inquir- 
ing gaze upon his face, he felt as though I detected the 
crime committed against myself, and naturally shrunk 
from his own consciousness. 



CASE OF CONSCIENCE. 

A PERSON by the name of Ray, apphed for the bene- 
fit of the insolvent law. It was shown that he had had 
five thousand dollars very recently in his hands, and 
he only accounted for it, by alleging that he was 
robbed whilst in a state of inebriation. This was very 
improbable, nevertheless the applicant was discharged. 
In about a month after this he died, and a week or two 
after his death the whole amount was forwarded to the 
opposing creditors. 

The explanation of this extraordinary matter was as 



CASE OF FELIX MURRAY. 5Q7 

follows : At the time of applying for the benefit, Ray had 
deposited the money with a relation as dishonest as 
himself — after his discharge he reclaimed it. " What !" 
says the relation, " do you demand the money from 
me, when you have just stvorn that you lost it, and do 
not own a cent in the world ?" Ray discovered he had 
out-witted himself, and under the effect of remorse for 
his perjury, and grief for his lost money, as has been 
said, he did not long survive. Struck with horror at 
the consequence of his own villany, the relation relin- 
quished "the wicked prize," and, as an evidence of 
practical repentance, restored the money to the rightful 
owners, through the medium of an anonymous note. 



CASE OF FELIX MURRAY. 

In 1831, M. was indicted for murder, and convicted 
through the " force of dying declarations — somewhat 
equivocal in their character — and which declarations 
were proved by an avowed enemy of the defendant. 
When the prisoner was asked what reasons he had why 
sentence of death should not be pronounced, after as- 
signing several, he concluded by the following remark, 
illustrative of the natural eloquence of the Irish people : 
" What was stated by Tommy T. was not true. He is 
a most deadly enemy of mine. He hates me. His 
hatred towards me is so great, that if the whole city 
was on fire, and I stood in the midst of it, and was 



508 * THE FORUM. 

burning to death, and he could put out the fire by 
spitting on it, he wouldn't do it." 

While under sentence of death, upon visiting him 
after one respite, and just before the second time ap- 
pointed for his execution, he was found in his cell, with 
the Bible and crucifix before him, devoutly engaged in 
prayer. He received his visitor with great cheerful- 
ness, and being asked as to his state of preparation, he 
replied: "1 am perfectly ready to die; the priest has 
been with me, and my peace is made." Upon being 
told there was still a ray of hope of pardon, it seemed 
to impart no delight to him. He- simply answered, 
" Well, it is perhaps better as it is — I am now pre- 
pared. If I should be pardoned, I might fall off again, 
and not die with the same hope of salvation." He 
2ms pardoned, and returned to Ireland, where, when 
last heard of, we rejoice to say, he was pursuing a re- 
spectable course of life. 



QUESTION OF PERSONAL IDENTITY. 

In 1821, an action was instituted by Mary M'Creth 
against William Dickinson, administrator to the estate 
of Captain Talbot, who, as was alleged by him, was an 
Englishman. Mrs. M'^Creth, however, averred that Tal- 
bot was her broilier, and an Irishman, and that as his only 
relative, she was entitled to his estate. On the part of 



QUESTION OF PERSONAL IDENTITY. 5Q9 

the claimant, the evidence by writing and parol was 
exceedingly strong. Mrs. Lee, one of her witnesses, 
swore to an acquaintance with the Captain for fourteen 
years before his death, during all which time he had 
lived in the same house with her. He spoke only 
of one sister, said her name was M'Creth, and she 
lived in London ; that she was so young when he came 
away, that she would not now know him. He wished 
to name Mrs. Lee's child Mary, after his sister. He 
was in the Liverpool trade ; had frequently been there, 
but said he could not leave his ship to go and see his 
sister. He never spoke of any other relative. He 
had a letter in his writing-desk, which he said was from 
his sister, and requested it to be read to him while on 
his death-bed. In addition to this, the letter from Mrs. 
M'Creth was produced, stating where she lived, and 
how long she had there lived. And a Mr. Leary was 
produced, to prove her actual residence, and identify 
her person. A letter in answer to this was also pro- 
duced by her from Captain Talbot. In Mrs. M'Creth's 
letter, she states her poverty, writes by way of Liver- 
pool, requests her brother to direct his letters to No. 
2, Lombard Street, London, and further states : — 
''' You may not be acquainted with my marriage, since 
I was, you know, very young when you left Newport, 
County Tipperary, Ireland." This letter was found 
among his papers ; he declared it to be from his only 
sister, and showed his sincerity by keeping it for ten 



510 THE FORUM. 

or twelve years. In health, sickness and insanity, he 
always spoke of his sister, and never of any one else. 
Upon these facts it appeared to be clear that he was 
an Irishman. 

On the other side, however, they attempted to show 
that Captain Talbot had always said " that he was an 
Englishman — that he had four or five sisters — that 
Dickinson was the son of one of those sisters. A pe- 
tition by the Captain, for letters of naturalization, in 
which he states " that he is a subject of the King of 
Great Britain," was produced, which, however, was a 
little equivocal in its operation, as Ireland might be 
considered as embraced by the term " Great Britain." 
But to strengthen the defence, a number of sea-captains 
testified " that Talbot had repeatedly told them he was 
born in England." A portrait was also produced by Mrs. 
Lee, at whose house the Captain died, which was said 
to bear a strong resemblance to the deceased ; but even 
this did not remove the difficulty ; for while one half 
of the witnesses swore that it was the very counter- 
part of the English Captain Talbot, the plaintiff's 
testimony was just as strong to show, that it was an 
admirable likeness of the plaintiff's brother, whom they 
professed to know, and that it even bore a strong family 
resemblance to the sister, (the plaintiff.) 

Mr. John K. Kane, (the present judge of the District 
Court of the United States,) was the counsel for the de- 
fendant. He enforced the testimony for the defence with 



QUESTION OF PERSONAL IDENTITY. g^ 

great ingenuity and ability, and manifested no less skill 
and power in his assaults upon the evidence for the plain- 
tiff. His theory was, that loose impressions, derived 
from thoughtless conversations of Captain Talbot, many 
years ago, had been misunderstood, or misrepresented, 
by the plaintiff's witnesses : that it was exceedingly 
improbable that Captain Talbot should sail to Liverpool 
for years, and never visit his only sister, who was 
in London, but about two days' journey : That the letter 
received by him, was supposed by him to be from the 
mother of the defendant, whose name was also Mary, a 
favorite sister — whose husband's name he probably sup- 
posed to be M'Creth — that he had written his letter under 
that impression— and that the letter intended for one 
of these women fell into the hands of the other, and 
produced all this confusion. He dwelt, also, upon the 
want of credibility of some of the plaintiff's witnesses, 
and the bias and interest of others : he adverted to the 
fact, of many years having elapsed without the plaintiff's 
asserting her claim : and he planted himself firmly upon 
the petition for natui^alization, signed by Captain Tal- 
bot, and stating himself to be a native of Great Britain : 
he also maintained, that the portrait itself bore strong 
marks of English peculiarity of feature : and, lastly, 
that the defendant, being in possession of the property, 
was not to be deprived of it, but by conclusive, or, at 
least, most satisfactory proof on the part of the plaintiff, 
who could not be entitled to recover upon a doubtful title. 



522 •' " THE FORUM. 

The answer, on the part of the plaintiff, by David Paul 
Brown, was, that it was not more remarkable, that Tal- 
bot should not visit the plaintiff, than that he should not 
have visited the mother of the defendant, whose resi- 
dence was proved to be nearer to London than Liverpool : 
that if he had not been born in L^eland, he never could 
have recognized the truth of the letter found in his pos- 
session, "referring to the time when he left his sister 
Mary, in Newport, Tipperary, Ireland :" that, if the wit- 
nesses were doubtful, the letter ^^^ unquestionable: that 
Captain Talbot could not have supposed that the letter 
was from the defendant's mother, consistently with the 
notion that he was an Englishman — and, if he was not 
an Englishman, there was no defence. The credit of the 
plaintiff's witness was maintained, and that of the de- 
fendants impugned : the fact of the mother of defend- 
ant being rich, and the plaintiff pooa.', was referred to, 
as corroborative of the relationship of the latter to the 
deceased, who had said " that he had but one sister, and 
that she was i^oor^ though respectable :" this poverty 
was also relied upon, to explain her not having earlier 
instituted legal proceedings. As to the petition for natu- 
ralization, its apparent inconsistency with the plaintiff's 
claim was accounted for, by its equivocation — by its 
having been loosely filled up — and carelessly signed — 
and instances confirmatory of this notion were cited : 
the matter of place of birth, as indicated by the por- 
trait, was also minutely discussed, with very opposite 



QUESTION OF PERSONAL IDENTITY. 5^3 

deductions from those drawn by Mr. Kane : and, in con- 
clusion, the plaintiff's counsel maintained, that, although 
he had not established an unquestionable claim, his proofs 
far outweighed those of the defendant, and, that the prin- 
ciple which obtained in criminal cases, that a reasonable 
doubt should discharge a defendant, did not prevail in 
civil suits. The case, nevertheless, resulted in a judg- 
ment for the defendant — and the poor plaintiffpassed the 
remainder of her days in penury and misery, maintaining 
to her last moment, her claims to the Talbot estate. 



We have thus furnished a few instances of " causes 
celehre," in the criminal courts, interspersed with one or 
two from our civil list. Our space will not permit a more 
extensive collection. Volumes would not contain the 
experience of a few short years, to say nothing of a 
long and active professional life. Can it be wondered 
at, in perusing these brief and imperfect annals, that 
the criminal practice of the country should be invested 
with so much interest, and present such fruitful oppor- 
tunities for the study of human nature ? But, remember, 
it is attended with still greater advantages. Almost 
every instance of rapid advancement in the profession 
has originated in some important and interesting criminal 
cause. Let others decry criminal jurisprudence as they 
may, there has rarely been an emuient advocate in this 



514 THE FORUM. 

city, who did not fir^t date his celebrity and success 
from cases partaking of the nature of criminal trials. 
— Lewis, the IngersoUs, Rawle, Dallas, Hopkinson, 
Sergeant, Binney, Z. Phillips, P. A. Browne, and Ran- 
dall, to say nothing of younger men; all flourished in 
this arena, and its influence is still more remarkable 
in Great Britain. 

The reason that such cases contribute largely to foren- 
sic advancement, is plain. The community take but little 
interest in mere questions between individuals upon pro- 
missory notes, — land disputes between A. and B. — 
controversies relating to principals and factors — or 
accounts render among partners. In such cases nobody 
is interested 'but the parties and the lawyers. Not so in 
treasons, homicides, forgeries, conspiracies, libels, etc. 
They furnish matters of general interest — of deep pubhc 
concernment, and consequently bring into play the fa- 
culties of head and heart, involve every variety of hu- 
man motive, and ensure the success of those to whom 
their discussion is confided. The Criminal Court, 
therefore, is the best school for young lawyers. If 
they possess the elements of greatness, this is the stage 
upon which they should first appear. We know many 
CRIMINAL lawyers that could not try a civil case, it is 
true ; we have known more civil lawyers that could 
not manage a criminal one ; but a well-read lawyer 
should be able to do hoth, and will perform the duties 
of either better, from comprehending both. 



CHAPTER XVII. 

LITEEATURE OF THE BAR. 

It was announced, as part of our plan, that we 
should furnish a list of the literary productions of the 
bar, but, after diligent research, we are compelled to 
say, that the members of the legal profession have 
always been necessarily so much engrossed by the 
labors of their own peculiar pursuits, as to afford but 
little leisure and few opportunities, whatever may have 
been their abilities or inclination, to indulge in the de- 
lights of general literature. The old are almost 
entirely absorbed by the cares and duties of their vo- 
cation, and the young are engaged in studious and labo- 
rious efforts, to lay the ground-work for their future 
fame. And although both classes have, from time to 
time, largely contributed, by the exercise of untiring 
industry, to the acquisition and diffusion of sound 
legal knowledge ; yet, the scientific field which they 
have cultivated, improved and embellished, has been 
so ample, and we may say, limitless, as to afford no 
leisure for practical devotion to classical erudition. Re- 



52g THE FORUM. 

ports and treatises, or notes upon the laws — eulogies, 
speeches, opinions, essays, lectures, reviews, and ad- 
dresses upon every variety of subject, can hardly fur- 
nish a legitimate claim to the character of literature ; 
they may manifest great study — philanthropy — beauty 
of composition, and power of thought, but they are 
casual, temporary, and ephemeral ; and whatever may 
be their influence upon the p^esent, have but a slight 
hold upon the future. It may be well said of them, 
as was said by Voltaire, when informed that the 
works of Rousseau were dedicated to posterity, "It is 
very doubtful whether they will ever reach their ad- 
dress." 

This is much to be deplored, and we regret to say, 
it is not confined to the present times, or to this coun- 
try. The only eminent ad^iocate of antiquity that 
passed beyond the lines of his profession, and shone 
as much in classic literature as in law, was Cicero. 
You have no works of Demosthenes — of Anthony — 
of Gracchus — of Crassus — or Hortensius — and no 
memorials of them, except those which are strictly 
forensic. Cicero's fame was drawn almost as much 
from his literary as his oratorical excellence : he did 
not possess more knowledge than many others, but he 
displayed more in his productions — he seemed to look 
more to posterity. 

These remarks are also applicable to the English 
bar. With the exception of Bacon, Clarendon, 



LITERATURE OF THE BAR. 5X7 

Jones, Brougham, Talfourcl, and Warren, we remember, 
amongst the regular ranks of the profession, no lite- 
rary lawyers — Coke, Hale, Holt, and even Mansfield 
and Erskine, have left us no evidence of their com- 
prehensiveness of mind and extensive general eru- 
dition, beyond what is to be gathered or gleaned by 
following them through their illustrious professional, 
official, or public career. 

And passing to our own country, our eminent lawyers 
and statesmen have scarcely ever indulged in anything 
beyond political and legal science — Duponceau, Rush, 
Charles Jared IngersoU, and a few others, present the 
only exceptions. Henry, Jay, Hamilton, Marshall, 
Story, Kent, Bushrod, Washington, Lewis, IngersoU, 
Rawle, Dallas, Ames, Pinckney, Webster, Binney, and 
Sergeant, all with minds richly stored upon almost every 
subject, and abundantly qualified to impart instruction, 
have been so engrossed by their legal or official duties, 
as to be deprived of the opportunity of diffusing the 
benefits of their experience, and their invaluable accu- 
mulations of intellectual treasure. Men may accom- 
plish much, but they are not equal to all thmgs — they 
are but finite beings, and all their works are finite, 
except those that are directed to another and a higher 
state of existence. 

Impelled by necessity or allured by hope, we pass 

on from one stage of human fife to another, employing 

• and exhausting all our energies — our three-score years 



518 • • THE FORUM. ^ 

are past — confirmed habit becomes tbe substitute for 
inclination^ and we still toil on, apparently without aim 
or object, until "the last scene of all, that ends life's 
strange, eventful story." How unwise is . all this — 
There should certainly be an interval between the ter- 
mination of the cares of this world and our preparation 
for the next. Let it always be borne in mind, even in 
our chief earthly glory, as well as in our deepest de- 
gradation and affliction, that ^HJiere is another and a 
better world!' 

There is a simple, but beautiful German allegory, 
that furnishes an impressive lesson upon this subject, 
which we earnestly commend to our readers, and which 
runs thus : — 

" An aged husbandman was working in his rich and 
wide-spread fields, at the decline of day, when he was 
suddenly confronted by a spectral illusion, in the form 
of a man. ^ Who, and what are you ?' said the asto- 
nished husbandman. ^ I am Solomon, the wise,' was 
the reply, ' and I have come to inquire what you are 
LABORING for?' 'If you are Solomon,' said the hus- 
bandman, ' you ought to know that I am following out 
the very advice you have given. You referred me to 
the ant for instruction, and hence my toil.' 'You 
have,' said the apparition, ' learnt but half your lesson ; 
I directed you to labor in the proper season for la- 
bor, IN order that you might repose, in the proper 

SEASON FOR REPOSE.' " 



SflEtlU^ifltt. 



This work is now ended — not completed. Its value, 
if it possesses any, certainly does not consist either in 
style or literature. To neither of these does it aspire 
or pretend. It is dependent altogether upon a few 
faithful and interesting memorials of the past, all of 
which, in despite of professional traditions, would, in an- 
other generation, be buried or irrecoverably lost, leaving 
no trace of the men of the present age, and supplying 
no example, or encouragement, or means, for a future 
History of the Legal Profession. 

The most of these pages have been written during 
the progress of the printing — some amid the bustle 
and vexation of juridical trials — and all within the 
limit of the present year. The announcement in Janu- 
ary last was founded upon the design, and not upon 
its execution — a design, long entertained, though its 



520 '^'^^ FORUM. 

fulfilment was always prevented or postponed by diffi- 
culties not necessary to be revealed, being of no public 
concernment. But I do not regret tbe undertaking, how- 
ever imperfectly tbe task assumed may have been dis- 
charged. Though attended with some labor, it has been 
a labor of love, and has recalled to the mind a thousand 
youthful reminiscences, which, although they could not 
prolong life, have renewed and increased its enjoyments. 
I have lived over again in thought — in companionship 
— in the charms and delights of a glorious profession 
— in victories and defeats — in social and convivial in- 
tercourse, the long lapse of forty entire years, — ^more 
than half the allotted duration of human existence. 
During all which time, to the credit of the bar be it 
spoken, I never had a personal quarrel with courts, 
counsel, or parties. In conformity to my advice to 
others, I have allowed no man to be master of my 
temper but myself; and, in the full consciousness of 
the difficulty of self-control, I have endeavoured to 
make just allowances for those who may not have ob- 
tained the same mastery over themselves, though, in 
all other qualifications, they may have been immeasur- 
ably my superior. 

I cannot take leave of my professional friends, in 
this my first, and, perhaps, my last work, without 
once more acknowledging their kindness in aiding my 
researches, and supplying me with some matters of in- 
terest, that might otherwise have been overlooked. I 



CONCLUSION. . 521 

return to tliem all (for it would be invidious to discri- 
minate), my sincere thanks — and now, asking my 
brethren of the bar to receive this humble offering as 
the legacy of a departing friend. I bid them all an 
affectionate farewell. 



iuh. 



VOL. II. — 3i 



Although it is presanuJ tliat most of our re;iJcrs cnn roarlil_v corr^vct the verbal or literal 
pn-iii'.-i ipf tli-sj VLila:.ijs. stJL a,< tliere arj fi.iin." iuaccuraL-iL's, (for wlik-li tlu author, lut the 
p..iii,jr, U res;jjii3 uU-,; wo havt; tluu^lit p.vpjr to a;ipoiKl tlu foliowaij;' 

E-R RATA. 

^' GLUME I. 

Faga 233, seventeenth line from top, for -^without enemies," re;xd "not without enemies." 
" 320, tenth Unj from top. fur •' b-innfits" roail "blessings." 
" 320, fii'teeuth line i'roui top. fur ''IToT," rea;l "1737." 
" Zi'J, note, second line from close, for •'■he,'' read "his." 
" 4J7, for ■' BiLiiuijijii, N. J." r.-al ■■ Piiilud^lp tid Count'/." 
" 49S, for "t/.a: lt32," read "cued ISoC." 
A'OLUii-; II. 
J a^'e 147, nj.xt to last line, for "Common Fleas," read "District Court." 
" 2-i3, la.st line, for "or" read "nor." 
'• 250, sixteenth line from top, for "or," read "nor." 
" 301, twenty-second line from top, for "gaunt,"' x-ead "'gainst." 
" cCP, foiirtli line from top, for "sheen," read "stream." 
" 517, fourteenth line from top, for "Bushrod, Wushington" read "Bushroi W.ish- 



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APR 79 

f- MANCHESTER, 
INDIANA 46962